HOD meeting covers 2010-11 candidates, state funding, legislation

Issue April 2010

On March 11, the Massachusetts Bar Association's House of Delegates met to cover a full agenda in the midst of the MBA's Annual Conference 2010.

MBA President Valerie A. Yarashus opened the meeting by welcoming delegates to AC10. She offered a special welcome to guests from the Tiered Community Mentoring Program, who were present to observe the meeting, including students from Roxbury Community College and Suffolk University Law School.

In addition to thanking Education Committee Co-Chairs Alan Klevan and Marsha Kazarosian for their efforts in AC10's CLE offerings, Yarashus also thanked MBA Vice President Douglas K. Sheff and the entire Gala Dinner Committee for a stellar effort in bringing together nearly 500 of their peers to the dinner that evening.

As part of her president-elect report, Denise Squillante asked delegates to oppose in principle expanded lawyer regulation under the Consumer Financial Protection Agency Act. The delegates' vote affirmed Squillante's view that the act would be "so broad and so burdensome" to the legal profession.

Following the treasurer's and secretary's reports, the remarks of MBA General Counsel and Acting Executive Director Martin W. Healy focused on the fiscal 2011 state budget and other activity at the Statehouse leading up to an election year.

Healy described Gov. Deval Patrick's proposed level funding for Massachusetts Legal Assistance Corp. as "quite a feat," but also noted the governor's budget cuts approximately $10 million from funding for the courts.

"This is a very critical year for the budget," said Healy. The Senate is expected to release its version in mid-April, which will be followed by the release of the House version in May. Upon enactment by both branches, a conference committee will be appointed to work out the differences between the two budgets.

Healy also let delegates know that the latest push for sentencing reform will be to have the House follow the Senate's suit; the Senate passed legislation in November granting parole eligibility for nonviolent mandatory minimum drug offenses.

"We're hopeful that this measure will move forward," said Healy, who cautioned, however, that nothing is guaranteed, especially entering an election year.

The election year will "drastically change the landscape on the Hill," Healy said. He noted that incumbents will not be running for re-election for 22 seats in the House and eight in the Senate. He asked the delegates to "pay close attention to your districts. In particular, those candidates who have stances with our profession in mind."

Delegates heard a report from 2010 Nominating Committee Chair Edward W. McIntyre on the proposed regional and at-large delegates and the following slate of officers:

  • President-elect: Richard P. Campbell
  • Vice President: Jeffrey N. Catalano
  • Vice President: Douglas K. Sheff
  • Treasurer: Robert L. Holloway Jr.
  • Secretary: Marsha V. Kazarosian

For a list of proposed delegates and more information on the nominating report, see front cover.

The delegates then were asked to vote on a series of proposals brought forth by the Probate Law Section Council. First, Probate Law Section Co-Chair Janice Nigro asked delegates to support in principle the proposed Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, which was drafted by the National Conference of Commissioners on Uniform State Laws. The act addresses all aspects of guardianships and protective proceedings for both minors and adults. Delegates voted in support of the act.

Probate Law Section Co-Chair John Dugan then asked the group to support in principle the revised definition of "nursing facility" under the Uniform Probate Code. Dugan proposed a more narrow definition of the term, making it consistent with the public health definition and leaving less room for ambiguity regarding types of admission that require an evidentiary hearing. According to Dugan, the Massachusetts Hospital Association and Probate and Family Court Chief Justice Paula Carey's UPC Implementation Committee support the proposed amendment. After Dugan fielded a handful of questions from delegates, HOD voted to support the revised definition.

William E. Hart, of Bulkley, Richardson and Gelinas LLP and a past member of the MBA Probate Law Section Council, presented a proposed revision of G.L. c.214, 3A - the statute concerning the right of publicity with a comprehensive definition of that right and a regime for recording transfers of that right.

Hart explained that Senate Bill 1800, An Act Relative to the Right of Publicity, provides a "significant improvement" to the current statute. In answering delegates' many questions, Hart explained that there is no federal law surrounding this issue, and while 28 other states recognize publicity as defined in the proposed bill, only 14 recognize postmortem rights. According to Hart, by supporting the bill, the MBA would be "part of a national movement." Delegates voted to provide that support.

Marc Bloostein and Eric Hayes then took the floor to ask the delegation to support in principle the report of the Ad Hoc Massachusetts Uniform Trust Code Committee that recommends the commonwealth adopt the Massachusetts Uniform Trust Code. According to the report, The Uniform Trust Code, put forth by the Uniform Law Commission in 2000, is the "first attempt to achieve national codification of the law of trusts." The code has been adopted in 21 states. After little debate, HOD cast a vote to support the Uniform Trust Code's implementation in Massachusetts.

Although a number of proposals concerning the Property Law Section were on the agenda, time only allowed for one. Suffolk University Law School Professor Kathleen C. Engel urged delegates to support in principle House Bill 1729 and Senate Bill 1778, both of which call for judicial foreclosure requirements.

Many delegates participated in an impassioned debate touching on concerns of court resources, sympathy for citizens losing their homes and fairness for responsible mortgage lenders. Responding to such concerns, Engel explained that nearly 85 percent of the cases are going to be default judgments should Massachusetts adopt judicial foreclosures.

"Think about the little guy," said Chris Milne, representative delegate for the Massachusetts Academy of Trial Attorneys. "At the end of the day, they will still have to make their case."

Dugan offered the concerns of the Probate Law Section Council that enacting judicial foreclosures would provide a "blanket treatment" for all lenders - responsible and predatory lenders.

Edward Smith, representative delegate of the Real Estate Bar Association, voiced REBA's opposition to judicial foreclosures. He explained that although REBA acknowledges the "national sympathy" on the foreclosure crisis, the association would be against such a mandate because of the required resources.

According to Engel, 30 states enlist judicial foreclosures, and from those, "we have not heard that this is burdensome" to the courts. "Massachusetts is behind the curve," she said.

Due to time constraints and the breadth of delegates' concerns, Yarashus moved to suspend the debate and a vote until the next HOD meeting. Delegates passed the motion.

The next House of Delegates meeting is scheduled to take place on May 19.