Bar Upbeat on Bills for New Sentencing, Voir Dire
‘Uphill’ Battles Include Uniform Probate Code
Published: 1:00 am Mon, February 26, 2001
By PAUL D. BOYNTON
Sentencing guideline reforms, a voir dire pilot project and the Uniform Probate Code could all come to fruition during the new two-year legislative session just getting into full swing — one which could affect lawyers from Provincetown to Great Barrington.
To see the light of day as a statute, controversial legislation probably needs to be passed in the year 2001, according to Martin W. Healy, general counsel and lobbyist for the Massachusetts Bar Association.
“This is a non-election year, and if you want to accomplish something on the more controversial bills with difficult issues, this is the year to do it,” Healy says.
Sentencing guidelines have been stalled on Beacon Hill for a number of years as district attorneys and the defense bar are at loggerheads. Prosecutors think the proposed guidelines are too lenient, and defense attorneys want to maintain judicial discretion.
But the issue got a kick start last fall as part of the fallout over the controversial sentence imposed by Superior Court Judge Maria I. Lopez on Charles “Ebony” Horton. The sentence of house arrest after Horton admitted to sexually abusing an 11-year-old boy was perceived by many as too light.
“There’s a heightened sense in the State House that the Legislature has dropped the ball on this one and at least needs to address the issue,” Healy said. “There’s a better possibility that we’ll see some form of sentencing guidelines. The Legislature wants to take up the issue this year.”
Healy said the MBA supports a middle ground of maintaining some judicial discretion with downward departures, while establishing a range of sentences for various crimes.He noted that prosecutors, defense attorneys and judges are attempting to reach a common ground in “ongoing, delicate discussions” as part of the MBA’s task force on sentencing reforms.
Truth Telling
The plaintiffs’ bar for years has lobbied for voir dire as a way to ferret out biased jurors. But the judiciary has balked, saying the current system of judge-controlled questioning of jurors works fine, and that voir dire conducted by attorneys would clog already congested trial sessions. But the Massachusetts Academy of Trial Attorneys is pushing hard for a compromise bill that would establish a two-year pilot project in Bristol, Middlesex and Worcester counties, according to Douglas K. Sheff, the organization’s president.
“The bill would allow one hour of voir dire to each side at trial,” Sheff explained. “It’s fair. It’s the right thing to do. Most other states have voir dire.” MATA is also pushing for a bill that would ban “secrecy” provisions common in personal injury settlements that prohibit the parties from divulging the terms of the settlements.
“The bill would make void as against public policy any clause requiring confidentiality not approved by a judge,” he said. Sheff said the bill is primarily directed at confidential agreements in cases involving public safety, dangerous products or environmental contamination.
“We’re pushing this one hard,” he remarked. Another controversial bill on MATA’s radar screen includes MBA-sponsored legislation that would apportion the expense of attorneys’ fees and costs incurred in personal injury actions among all medical lien holders. This proposed act was filed in direct response to the Supreme Judicial Court’s 1999 ruling in Pierce, et al. v. Christmas Tree Shops, Inc., et al., that an HMO with a medical lien for treatment to an injured plaintiff is not required to contribute to the plaintiff’s attorneys’ fees and costs in obtaining a recovery from a tortfeasor. MATA and the MBA are also aligned in the effort to modify some of the impact of the 1991 workers’ compensation reform law.
“There’s a lot of frustration over the inequities in the benefits that are paid to individuals,” Healy said. “The Legislature has not tinkered with the reform laws at all. The MBA would like to see the Legislature seriously address these concerns.” The MBA and MATA also are continuing to press for lifting the charitable immunity cap of $20,000. “There are hybrid approaches being advocated,” Healy noted. “The MBA is proposing increasing the cap to $500,000. MATA wants to look at each charity on a case-by-case basis.”
Miles to Go
The Uniform Probate Code is the product of an eight-year effort of the MBA and the Boston Bar Association to modernize probate laws by codifying existing case law and establishing uniform rules. Despite hopes of passage last year — it was reported favorably out of the Judiciary committee — the UPC foundered at the end of the session. Lawmakers are approaching the comprehensive overhaul of probate laws with an abundance of caution, Healy said.
“The Legislature still has a great uncertainty as to its impact despite the educational efforts of the MBA and BBA,” Healy noted. Nonetheless, he expects the Judiciary Committee to address the UPC early in the session. “There’s a sense that lawmakers have a desire to move the UPC forward to passage,” Healy observed.
That Small Matter of Money
The Trial Court is asking for $527 million in funds for FY 2001, which begins in July. However, the governor’s budget proposal recently sent to the Legislature only included a request of $481 million for the judiciary.
“The governor’s budget does not adequately address the needs of the judiciary,” contended Augusto R. Grace, the Trial Court’s legislative liaison. “The difficulty is that the maintenance number what’s needed to service existing programs and personnel is $28 million less than what’s needed.” Grace attributes part of the problem to some “confusion” in the changeover from detailed listing of budget requests as done in the past to nine consolidated line items.
SJC Chief Justice Margaret H. Marshall favors the consolidated approach because it makes it easier to move money among court programs, Grace said. He conceded that a lot of work needs to be done” in making sure the judiciary isn’t shortchanged. The Trial Court listed three top priorities in the upcoming budget battle. It wants to move its information technology staff charged with implementing the ambitious statewide court computerization project to the Trial Court’s budget to avoid drawing down finite dollars from the $75 million technology bond bill, Grace said. He noted that the IT project is expanding as the court computerization edges closer to an Internet-based data base linking courts across the commonwealth. Another top priority is beefing up court-sponsored interpreter programs, Grace said.
“It really affects the day-to-day operations of the courts,” he noted. The Trial Court wants seven full-time Spanish interpreters to be deployed in key courthouses throughout the state, Grace said. “It’s more efficient than scheduling independent contractors,” he remarked. The Trial Court is seeking an expansion of funding of about $600,000. The Boston Bar Association is fully behind the funding initiative, according to Leslie Davies, the association’s director of government relations.
“Inadequate court interpreter services have an obvious and detrimental effect on the quality of a court proceeding in which one or more participants are unable to express themselves or understand what is being said in the courtroom,” Davies wrote in a letter to Gov. A. Paul Cellucci. “The state must ensure that important legal rights are adjudicated under fair conditions.” Grace indicated that a third priority of the Trial Court is for expanded funding of $2.3 million for tighter courthouse security, including an expanded force of court officers and new security equipment.
Other Concerns
The Women’s Bar Association is supporting a wide variety of bills cutting across a spectrum of interest groups. The WBA wants a bill passed that would end insurance pricing and practices that violate the state’s equal rights amendment.
“This bill passed the Senate unanimously the past two years,” said Ann Morse Hartner, a Newton attorney who chairs the group’s legislative policy committee. “We’re hoping to work with the House this session to make it a law.” The WBA is also working to secure passage of laws that would help welfare recipients overcome barriers to employment without losing government assistance, and that would require contraceptive and hormone replacement therapy coverage under insurance plans regulated by the state. It also continues to press for a modernization of the spousal elective share laws. Under the current law, a spouse has stronger rights to marital property if he or she divorces rather than stays married, according to Hartner. The bill provides safeguards against evasion, notice, right to know the decedent’s assets and procedural rules absent from current law, Hartner indicated.
According to Davies, the BBA is focusing on “ensuring meaningful access to courts for all persons, including adequate funding for court interpreter services and adequate funding for legal services for the poor.” The BBA is also supporting a bill that would conform the state’s public records law to the existing common law recognition of the applicability of attorney-client and attorney work product privileges to government lawyers, she said. And in addition to supporting passage of the UPC, the BBA also wants uniform divorce procedures, Davies indicated.
The Massachusetts Conveyancers Association is urging legislators to pass a bill that would expand the jurisdiction of the Land Court as a way to consolidate litigation over land use and environmental issues.
