Clerks’ Remembrances

Appreciation of Chief Justice Gants

by Abrisham Eshghi 

Viewpoint

“Imagine a world.” Some of the Chief’s greatest questions began with these three words. Sometimes, they prefaced a thought-provoking hypothetical where the Chief would alter the facts. Other times, they required thinking through the broader implications of a potential ruling that initially seemed straightforward. But, most often, these words were an invitation to imagine a world that is better than ours, and to imagine what we need to do to get there.

I had the extraordinary privilege of clerking for Chief Justice Gants in the 2017-18 term. It was a year spent trying to reason like him, react like him, probe like him, and simply keep up with him.

He welcomed disagreement. A cherished mantra of his was “when you point out that my reasoning does not make sense, there are only two possible outcomes: Either you have allowed me to avoid making a mistake, or you have identified that there must a better way to articulate this.” In fact, he assigned his clerks homework on this topic, such as a chapter from Malcolm Gladwell’s Outliers discussing a theory of why Korean airlines experienced a disproportionately high rate of plane crashes. The theory begins with the fact that when signs of danger appear during a flight, the pilot who spots the signs must alert the other pilots. Yet in cultures that value deferential communication styles with authority figures, this may translate to a cockpit where instead of the lower-ranking pilot unequivocally communicating imminent danger to the higher-ranking pilot, the lower-ranking pilot instead meekly suggests that something may not be quite right. My takeaway – yell at the Chief so he does not crash the plane!

He welcomed compassion. He truly never lost sight of the people that were governed by the cases that came before the Court. While other judges might start and end a case with the routine application of a statute or precedent, in the Chief’s hands, the case blossomed into an opportunity to examine how citizens of the Commonwealth live and experience the world around them. Standards of how a “reasonable person” would act or think are baked into almost every area of the law, and “common sense” is routinely invoked by courts as grounds for choosing one argument over another. But the Chief cautioned his clerks against blindly accepting words like “reasonableness” and “common sense,” as they were often shorthand for the convenient status quo. “Reasonable for whom?” he would ask. “Common sense for whom?”

He welcomed accessibility. The Chief never wanted to “hide the ball” in his work and habitually requested that his clerks craft judicial opinions so that “even an intellectually curious fourteen-year-old” could understand what he was trying to say. If, in the course of drafting an opinion, we encountered a tortuous precedent, he would insist that we “say it better” without replicating the difficulties. He had a knack for homing in on the occasionally muddled or misguided ways in which parties to a case framed issues, and then crafting a cleaner explanation of what the case was really about. The ease with which he exercised this last skill was particularly admirable.

It pains me to think about how much more he had in him to give. My only comfort is in sifting through my myriad memories of the time I was lucky enough to share with him. I will miss his brilliant questions, and his even more brilliant solutions. I will miss his antiquated cultural references that went over my head. I will miss his Red Sox metaphors that also went over my head. I will miss him addressing the trio of himself, my co-clerk Maia, and me as “us gals.” I will miss the intense swell of pride I felt during his 2015 speech at the Islamic Society of Boston Cultural Center when he said “[y]ou do not stand alone.” I will miss him spontaneously making up new lyrics to the song “The Impossible Dream” from Man of La Mancha. I will miss our rejuvenating “mental health walks” as we meandered through Boston Common. I will miss watching him absentmindedly devour an entire baguette in one sitting. I will miss seeing the two sizeable portraits of Justice Louis Brandeis and Justice Thurgood Marshall looming over his desk and thinking to myself that, with room on the wall for a third, a portrait of the Chief would complete this triptych of legal giants. I will miss the sparkle in his eye when he knew there was challenging work to be done. I will miss his infectious fits of giggles. And I will sorely miss him next year at my wedding, where he had promised to officiate.

I recently found the copy of The History of the Law in Massachusetts that the Chief gifted me on the last day of my clerkship. His parting words to me, penned on the front cover in his quirky doctor’s scrawl, were “believe in yourself as I believe in you.” Prior to his death, these words brought me great comfort. But in death, his words take on a different form. I feel them almost vibrating off of the page. Demanding that I believe in myself. Demanding that the time is now to take action. Demanding that I pick up the baton and continue his work.

Chief Justice Gants was inimitable. But we must now try our hardest to step into his magnificent mind so that we may carry on his extraordinary legacy.

I hope you’re still getting in good trouble, Chief.

Abrisham Eshghi is an Assistant Attorney General in the Civil Rights Division of the Massachusetts Attorney General’s Office. She clerked for Chief Justice Gants during the 2017-18 term.

Appreciation of Chief Justice Gants

by Larisa Bowman and Mike Kaneb

Viewpoint

We had the enormous privilege and pleasure of serving as law clerks to Chief Justice Gants during his first full year on the Supreme Judicial Court (2009-2010).  He was an extraordinary teacher and mentor, and the year we spent in his chambers fundamentally shaped how we view the law and our role and responsibilities as lawyers. 

Law clerks, when they are able to be helpful at all, tend to treat every case as a purely legal problem that can be solved by identifying the perfect case citation, judicial doctrine, or other legal tool.  Chief Justice Gants took a broader view: all cases presented legal problems to solve, but most cases also required a judgment that weighed considerations of policy, administrability, and equity.  In deciding a case, the Chief was always grateful for a clerk’s cogent legal analysis and the best citations available, but it was usually clear that — having been pretty sure from the start what the law was likely to provide — he had been spending his own time thinking through what the real-world consequences of the Court’s decision would be for lawyers, judges, and most particularly, everyday people. 

He loved people — all sorts of people, including the two of us, a couple of strangers he found already hired and deposited with him even before he was confirmed.  His law clerks were special to him, and he taught us with humor and affection.  “You’re not a Jedi Knight yet, but you show great promise” is how he began his gentle review (and quiet wholesale restructuring) of the work we produced for him in the earliest months of the term, when we knew the least.  He liked to take us on working walks across the Common to talk through cases that would be helpful to him as he worked out the shape of his decisions in his mind.  This met his need for constant activity in days that were always too short for everything he wanted to get done: work, mentoring, and a little light exercise all combined in one outing.  He was a brisk walker, but halfway across the street, we sometimes found we had left him on the corner: he never jaywalked, not even on the margin. 

Every few weeks, the Chief would invite us to a sit-down lunch at his favorite Chinatown cafe.  For the first few lunches, we expected that he had set the occasion to impart some great piece of wisdom or to let us know of some important development on the Court, but actually he just wanted noodles, a friendly chat, and a short break from his work.  During our year at the Court and in all the years that followed, the Chief kept up with our personal and professional news and also with the accomplishments of our spouses and children.  We never could figure out how he had the time or head space to manage this.

The Chief’s deep interest in people was at the heart of his work as a judge, and he was dogmatic only in his drive to deliver more justice to more people, inject more fairness into society, and bring more good to the world.  The clearest expression of his judicial philosophy is the statement he made in a 25th anniversary Harvard class report, that deciding cases required him to balance the “sometimes conflicting obligations of following the law and ensuring fairness.”  Worrying about the fairness of a legal rule requires a judge actually to see and consider the rule’s consequences for the individuals affected by it.  The Chief put all of his intelligence and experience and wisdom into seeing those consequences clearly and weighing them fairly.  First as an associate justice of the Court, then as its leader, the Chief believed the Court’s mission was not to hand down the law to the people but rather to make the law serve the people. 

Early on, his decisions took on this mission in smaller cases like Papadoupolos, where he dispensed with the Commonwealth’s unique “natural accumulation” rule for liability claims involving snow and ice, a legal doctrine that gave no consideration for people injured in falls and that had long survived only on the basis of its repetition in the case law.  Later, when he had reached the height of his own Jedi powers, he and the Court executed on this mission in much bigger cases, like Adjartey, which delivered a clear-eyed and comprehensive view of the systemic inequality and inequity that can arise in housing court, where most tenants are without counsel.  The Chief’s opinion in Adjartey made the problems of people who must rely on the housing court seen and heard for the first time, and made the judicial system responsible for addressing those problems.  Eleven years into our careers as lawyers, this challenge — to discern not only what the law allows, but also what fairness demands — is the most valuable, continuing lesson we take from our year working with the Chief.

The Chief never achieved his first great ambition, to play shortstop for the Red Sox, but as a judge, he had made it to the major leagues.  That is what is so deeply tragic about losing him now.  Six years into his role as the chief justice and with four years left before hitting the Court’s mandatory retirement age, he was really just rounding second base.  He had established himself as one of the great jurists in the history of the Supreme Judicial Court, and he was focused on making permanent his mark on the justice system writ large.  A hugely important report he had commissioned on racial disparities in the Massachusetts criminal justice system was published five days before his death.  The morning he died, he was hammering out details of a statewide eviction diversion initiative, which aims to address the civil justice gap across the Commonwealth’s housing courts as they brace to manage the economic fallout from the COVID-19 pandemic.  His heart was in the work of reform.  As we grieve, it is in large part for the work he leaves undone. 

Also, we miss him.

Larisa Bowman is a Visiting Associate Professor at the University of Iowa College of Law.  She clerked for then-Associate Justice Ralph D. Gants during the 2009-2010 term.

Mike Kaneb is Deputy Chief Legal Counsel to Governor Charlie Baker.  He clerked for then-Associate Justice Ralph D. Gants during the 2009-2010 term.


Coming Together for Change; Coming Together To Remember

by Radha Natarajan

Viewpoint

The sudden loss of Chief Justice Ralph Gants shook this community, even in a year when we faced a deluge of losses. The number of people affected by the news and the outpouring of stories about his impact underscore the many dimensions of his work, commitments, and leadership. While there is so much I could say about Chief Justice Gants – including his kindness, accessibility, and humor – I want to focus here on his approach to correcting and preventing wrongful convictions. Specifically, Chief Justice Gants should be remembered not only for what causes he chose to champion but how he pursued change.

Eyewitness Misidentifications & Wrongful Convictions

Moved by stories of exonerations, such as that of Bobby Joe Leaster in Boston, Chief Justice Gants was troubled by the number of wrongful convictions caused by eyewitness misidentifications. Almost a decade ago (even before he was Chief Justice), he referenced the now-well-known statistic that over 70% of wrongful convictions overturned through DNA evidence involved at least one mistaken eyewitness identification.

Chief Justice Gants recognized that making progress toward reducing wrongful convictions caused by eyewitness misidentifications was more complicated than the Supreme Judicial Court simply setting down new rules. Real change would necessitate a diverse set of stakeholders, rigorous study, and ultimately consensus recommendations. He appreciated, probably because of his own humility, that even the seemingly awesome power of the Court was insufficient to initiate and sustain the kind of changes that were necessary to tackle such a complex issue. The creation of the Study Group on Eyewitness Identifications (Study Group) followed.

Through the Study Group, then-Justice Gants brought together people in traditionally adversarial roles to undertake research, come to a common understanding, and develop guidance for the Court. This two-year voluntary undertaking by judges, prosecutors, police officers, defense attorneys, and researchers led to a Report with consensus recommendations. The recommendations were comprehensive, addressing everything from techniques to interviewing witnesses without contaminating memory, to administering non-suggestive identification procedures, assessing an identification’s reliability, determining its admissibility, and considering what information jurors required for the adequate evaluation of identification evidence. Justice Gants then sought public comment on the Report, again ensuring that various perspectives were involved and heard. Like other reports or endeavors he directed, Justice Gants had no intention of leaving this Report on a shelf to collect dust. To the contrary, Chief Justice Gants took the Report’s findings and implications seriously: he diligently studied the research referenced, carefully considered its recommendations as well as the public comments, and then used the Report to guide the Court’s approach to addressing eyewitness identification cases in the future.

Chief Justice Gants was committed to following where the evidence took him, even if it meant that there needed to be a radical shift in the law. This commitment was especially important in this area because, as he often said, the law had previously been guided by misconceptions or “common sense” that was at odds with scientific study. As a result, Massachusetts became a national leader in its approach to eyewitness identification evidence. He spoke often at conferences about the changes heralded by the creation of the Study Group. He was proud that the process involved so many people, recommended such transformational changes, and had the potential to avert the injustice of wrongful convictions. He had hoped that the Study Group would not only impact real people, and prevent tragedies like what happened to Bobby Joe Leaster, but that the process could be replicated to tackle other seemingly intractable issues within the criminal legal system. In short, it represented the culmination of so many of his deeply held values.

Tried & True

The Study Group was not the only example of how Chief Justice Gants chose to tackle issues of injustice. He believed that bringing people together toward a common understanding, based on diligent research and data, was necessary for change. He understood that education was an essential, but not sufficient, part of the process. It is why he held a mandatory implicit bias training for the judiciary, why he commissioned Harvard’s Criminal Justice Policy Program to undertake an in-depth study on the stark racial disparities found in the Massachusetts criminal legal system, and why he tasked a Standing Committee to develop science-based jury instructions on implicit bias. In each instance, he brought people together to study carefully and thoughtfully the issues that required the most significant changes, and in each instance, it was meant to be only a starting point. He did not want to push people to accept change; he wanted to bring people along until there was momentum behind change.

Chief Justice Gants was committed not only to raising the awareness of, and bringing evidence and data to, the bench or bar generally; he was committed to learning himself. For example, in 2018, he accepted an invitation to attend a dinner of faculty who had recently presented at a New England Innocence Project Litigation conference. The faculty included judges, prosecutors, defense attorneys, scientists, and “innocence advocates.” Despite suffering from a recent concussion, Chief Justice Gants attended the gathering and gave a few remarks, mostly to emphasize his commitment to correcting and preventing wrongful convictions. He also expressed his gratitude to the faculty for creating such an incredible opportunity to hear from so many people who, despite playing adversarial roles in litigation, had come together for this purpose. The rest of the night he spent listening, one by one, to what everyone had to say and to our ideas for creating meaningful change. Subjects ranged from the more mundane evidentiary questions to the profound areas of judicial culture and finality. And last year, when the New England Innocence Project held an event at which exonerated men and family members told stories about the impact of their wrongful convictions, Chief Justice Gants came to listen then too. He never tired of learning.

What Now?

Chief Justice Gants believed that change was possible by bringing people together, having them learn together, and asking them to build toward consensus. In that way, he was a great leader because transformational change did not depend on him alone. It was his inspiration and vision, more than his position, that laid the foundation for these efforts, and there are others who share that same commitment. What Chief Justice Gants started does not need to end with his passing; that was the true genius of his process and the true measure of his humility. We must sustain and continue the things he started, and with him in mind, we must do them together.

Radha Natarajan is the Executive Director of the New England Innocence Project (NEIP), an organization whose mission includes correcting and preventing wrongful convictions and supporting exonerees upon release. Prior to joining NEIP in 2015, Radha spent twelve years as a public defender, most recently at the Roxbury Defenders. She teaches a seminar on Wrongful Convictions at Boston University School of Law.


Interview with Robert Vitale

by Stephen Riden

Viewpoint

As chair of the Boston Bar Journal, I had the opportunity to talk with Robert Vitale, Chief Court Officer of the Supreme Judicial Court, about his professional and personal relationship with Chief Justice Gants. What follows is an excerpt of our discussion, condensed and edited for clarity. 

Q: Over the years you must have met a lot of judges. What was your first impression of Justice Gants?

 A: Yes, I have. However, Chief Justice Gants stood out because I could tell he was a very kind and caring person. It was easy to see how passionate he was about his work and that he had a great sense of humor.

Q: How would you generally describe Justice Gants?

A: I would describe him as an all-around great guy and a good friend. He was very humble, compassionate, and intelligent. He cared about everybody. He had endless energy. Frankly, I don’t know how he kept up the schedule he did. I feel like he worked twenty hours a day seven days a week.

Q: Could you provide an example?

 A: In addition to his regular work schedule, he made it a point to go out and visit different courts around the state. The purpose for the visits was so that he could meet as many court employees as possible.

Typically, the visit would start with a small meet and greet with the court’s ”management team,” the judges, magistrates, registrars, chiefs and assistant chiefs of probation and security. He would discuss a variety of issues and answer any questions they had.

From there, assuming the court had a jury pool, he always wanted to address the jurors. He wanted to thank them for their service and let them know the importance of the work they were doing for the Commonwealth.

He would then take a tour of the court. This would include going to each department and stopping by everyone’s desk to say hello. He did not want to disturb anyone, but he wanted to meet as many employees as possible to say hello and thank them for the important work that they do every day.

In addition to meeting the staff, he always wanted to have an employee luncheon. This was his favorite part of the visit. The luncheon was only for “line” staff, not management. He said it was important for him to meet the employees who are in the trenches and on the front lines. He always told them that he valued their perspective and that they should not hold back on their opinions. He wanted to hear the good, the bad, and the ugly. He took notes and let the staff know that whatever was said at the luncheon was confidential and that he appreciated their honesty.

Q: He seems like the kind of guy who could talk to anyone, is that right?

A: Absolutely. I would say that, given the position he was in, I don’t think you ever felt like you were talking to the Chief Justice – he was just so easy to talk to. He had a great sense of humor, he was quick witted, and he never took himself too seriously.

Q: What can you share about how he treated lawyers who appeared before him?

A: He treated everybody with respect. If he disagreed with an attorney, he always did it respectfully and did not embarrass anyone. For him, it was always about being fair, respectful and trying to get the right result.

Q: I understand that he was always looking for opportunities to make improvements to the court system. Did you observe that in your interactions with him?

A: Absolutely. He was always open to hearing new ideas. If something wasn’t working, you were free to tell him it wasn’t working and why you thought it wasn’t. He did not have the “my way or the highway” mentality. He would always ask, “what can we do to fix it?”

Q: Do you have a sense of what else he wanted to accomplish?

A: One of the things that he was most passionate about was access to justice. He worked tirelessly to promote and expand access to the courts for everyone in the Commonwealth.

At the time of his death, he was working on several issues that were priorities for him. These included the Massachusetts Eviction Moratorium that was set to expire on October 18, racial injustice, and criminal justice reform.

Q: Is there anything else you would like to share?

A: Chief Justice Gants was an avid sports fan. He followed all the New England sports teams but he really loved the Boston Red Sox. On July 28, 2014, he was invited to throw out the ceremonial first pitch before the Red Sox played the Toronto Blue Jays.

He told me he had been practicing to make sure that he didn’t bounce the ball before the plate. He was both excited and nervous at the same time but it was such an honor to have been asked.

Lastly, I would say that we are all going to miss him, certainly those of us who worked closely with him every day. This is a huge loss for the court system in general. He wasn’t just my boss and colleague, he was also my friend.

Stephen Riden is a commercial litigator at Beck Reed Riden LLP, who represents corporate and individual clients in a wide array of disputes across the country. He is the chair of the Boston Bar Journal.


Access to Justice: Reflections on Chief Justice Gants

by Susan M. Finegan

Viewpoint

It was a privilege to partner so closely with Chief Justice Gants on access to justice initiatives over the past ten years, having served with him for ten years as a member of the Massachusetts Access to Justice Commission (commission), and then as his commission co-chair.  Throughout his time on the Supreme Judicial Court (SJC), he cared so deeply about access to justice, constantly thinking strategically about ways to make the civil justice system more accessible and fair.  Soon after his appointment as an associate justice of the SJC, Chief Justice Marshall approached him to become the co-chair of the commission.  This new role was his first engagement with civil legal aid and access to justice issues; true to form, he rolled up his sleeves to learn as much as possible, and energetically set to work.  Four years later, during the appointment process for the Chief Justice position, he filled at least two pages of his application describing the various commission projects on which he collaborated with so many during his first years on the commission.  In fact, in answering the judicial application question, “What are you most proud of?,”  he listed his work as co-chair of the commission first.  Certainly he did not lack for other professional achievements in his decades-long, storied career as a trial lawyer and trial and appellate judge, but his commission work clearly embodied the essence of what was truly important to him, as a judge and a person.  

His emphasis on collaboration and teamwork was one of the hallmarks of his commission work.  Throughout his tenure as co-chair, he encouraged people to work with him and engaged deeply with them – applying his laser focus and astonishing work ethic to every project.  He relished working with the impressive and committed people of the commission, many of whom he had not met before joining, and likely would never have met had he not been asked to take on the co-chair role.  He made the work enjoyable, too, by connecting with people on a human level, not just as Chief.  He mixed his dry sense of humor with a dizzying familiarity of outdated cultural references and an encyclopedic knowledge of sports.   

During his Chief Justice nomination period, he spoke several times about life lessons learned from his parents.  The first was from his father, a French and German wine salesman to restaurants and liquor stores in New York.  His father was always mindful of the concept of continued performance, saying often, “They don’t care what you did last year; they care what you are going to do this year.”  The Chief Justice took that advice to heart in all of the work that we did together.  He was an energetic man of action – on the commission, as Chief Justice, and nationally.

On the commission, for the better part of the last decade, he pushed us to be a “working” commission, transforming the organization into a more proactive organization.  Every summer, he loved holding commission retreats at his house to develop a strategic plan of action for the coming year.  He encouraged us in those meetings to think deeply with him about the important issues we faced, insisting that we left the retreat with three or four actionable goals that we could achieve by year’s end, and, inevitably, with an overflowing bag of leftover muffins and sandwiches. 

He would often say to me that the commission needed to do things, not just create reports to have them “collect dust on shelves.”  So, when we did produce reports, they had to have a purpose.  A prime example of this is a report we worked on together four years ago, the Justice For All Strategic Action Plan.  This project involved putting on paper a vision for the how the courts could transform how they handled those case types – family law, housing law, and consumer debt – where a majority of the litigants were unrepresented.  We were one of the first states to work on such a project, so there was no blueprint for how it was supposed to be framed.  We spent a year conducting outreach, convening committee meetings, and holding retreats.  Then the time came, around Thanksgiving, to start drafting.  When the consultant we had hired to produce the first draft left the project unexpectedly, the Chief Justice did not miss a beat: he just rolled up his sleeves with a small team of us and started drafting.  Then, as any experienced appellate judge would do, he started editing, and then continued editing, and editing some more.  I never admitted this to him, but I was quite satisfied with the report on the twentieth round of edits, but he insisted that we continue, through Christmas Eve, to round twenty-five.  The action-oriented plan we finalized has served as a blueprint for much of our commission’s work for the last four years, and will for the years to come.

He also used his role as co-chair of the commission to advocate for changes in the court system.  For example, several years ago, he asked commissioners to draft a report on a relatively new concept established by a few other states called “court service centers,” which could assist unrepresented litigants.  That report, authored by commissioner (and former BBA president) Tony Doniger, helped lay the groundwork for the court to fund two pilot court service centers the following year.   Likewise, the Chief leaned on the commission at the start of the COVID-19 pandemic, and the resulting court building closures, to provide constructive feedback on the court user experience during that time. 

He carried his passion for access to justice through to his work on the SJC.  He used his judicial role to ensure that the voiceless in the court system had a voice.  And he availed himself of every tool at his disposal, including: drafting opinions that impacted low income litigants; making rule changes that were equitable for all litigants, including the unrepresented; and expanding the court budget to increase the number of court service centers to assist more unrepresented litigants.  He used his many speaking opportunities, such as the annual State of the Judiciary, to advocate for the racial justice, civil rights, criminal justice reform, and access to justice, issues about which he cared deeply.  As he observed in his most recent State of the Judiciary address:

Until we create a world in which all who need counsel in civil cases have access to counsel, we must do all we can to make the court system more understandable and accessible for the many litigants who must represent themselves.

He was also a man of action on the national stage.  As a dynamic member and leader of the Conference of Chief Justices and of the Justice For All Initiative, he deftly pressed other state courts to make justice more accessible to all.  He created conference agendas and suggested keynote speakers to have other judges think about issues impacting those marginalized by the justice system.  He also drafted policy resolutions addressing access to justice, consumer debt, and racial justice.  Then, he used his political savvy to figure out the best way to ensure they were adopted, which often meant strategically asking someone else to take the lead in promoting the resolution.  In his application to be considered for Chief Justice, he said:  “I would like to believe that, if named as Chief Justice, I could play a national leadership role in advocating for access to justice, because I think Massachusetts is becoming a national leader in exploring innovative ways to provide access to all.”  He lived out that aspirational goal through his actions and words every day he served as Chief Justice.

Another life lesson he shared during his nomination process was from his mother, who judged everyone by how they treated others.  The highest praise she could give to a person of accomplishment was that he “was a regular guy.”  As in, “that Jonas Salk invented the polio vaccine, but he was just a regular guy.”  He took that advice to heart in the way that he focused on how a typical court user would experience walking through the courthouse doors.  In fact, he had a favorite hypothetical litigant, Mrs. Alvarado, a low income single mother of two who lived with her disabled mother.  He used this example to educate himself, and others, to better understand how she would experience the courts in her family’s high stakes eviction process.

Living his mother’s credo, as the Chief Justice, he could have stayed in his ornate office on the second floor of the Adams Courthouse, and bask in his many accomplishments, yet he chose to venture out, physically and emotionally, to focus on those in our community who did not have access to such privilege.  He felt a great responsibility as Chief Justice and as the leader of the court system to try to understand what it was like to come to court with no attorney, with no facility with language, with insecure immigration status, or with no access to technology.  He was especially concerned about the “court user experience” during his last seven months, during the pandemic, when access to court buildings was closed to most litigants and self-represented litigants had to figure out how to find and use remote court systems.  He valiantly worked with other court leaders to address the many challenges the court system faced.  He sought out feedback – the good and the bad – to make improvements where he could, noting that it was imperative for the court to know what was happening on the ground. 

He continued to think about those litigants in the final months, and moments, of his life, when he focused almost exclusively on the looming eviction crisis resulting from the pandemic and the ensuing economic recession.  He had previously described this eviction crisis as “the greatest access to justice challenge of our lifetime.”  On the morning of his death, the Chief Justice and I spoke for more than a half hour about his deep concerns on the eviction front, strategizing on solutions as we often would.  I take some solace in the fact that he spent the last hours of his incredible life using the gift of his intellect and the privilege of his power as Chief to help the many desperate people impacted by this pandemic.  

In one of his last speeches as Chief Justice, at the Access to Justice Fellows “graduation” event this past June, he quoted from the opening lines of Charles Dickens’ The Tale of Two Cities, which he said described the first months of the pandemic:

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair …

His examples of the “worst of times” in that speech were, of course, numerous – including the pandemic itself, widespread economic insecurity, and systemic racism.  He noted, however, that there was an undercurrent of the “best of times” in that the pandemic presented an opportunity for the court system – and, indeed, for all of us – to begin to “transform ourselves in ways that we never really have had to do before.”  It was a time, “in which not only do we need people’s commitment, but also we need people’s imagination, to find new ways to do things,” collectively and collaboratively.  The Chief further noted that, even though the times were challenging, “we will emerge from this stronger.”  I must admit that it will be much harder to emerge from this stronger without his indispensable leadership.  I also know that, more than anything else, he would insist that we all continue to do our part to provide greater access to justice for all because there is still so much unfinished work.

I’ll close this reflection with a nod to his mother: “that Ralph Gants was a brilliant jurist; a national voice for access to justice; an indispensable leader of the court system; a beloved figure to so many yet also a great friend to those close to him; but, most of all, a regular guy.”

Susan M. Finegan is a litigation partner and Chair of the Pro Bono Committee at Mintz.  As the firm’s pro bono partner, she serves as lead counsel on numerous high profile pro bono litigation matters and oversees the 300+ pro bono matters throughout the firm.  Sue is active on many boards and commissions, including as a member and current co-chair of the Massachusetts Access to Justice Commission.


Honoring Chief Justice Ralph Gants

by Hon. Jay Blitzman (Ret.)

Viewpoint

Celebrating the visionary legacy of Chief Justice Ralph Gants demands consideration of his commitment to access to justice and achieving racial and ethnic equity, particularly for marginalized communities. The Chief understood the need to address issues involving youth through a developmentally appropriate lens and the reality that many children and families are affected or involved in both child welfare and juvenile justice systems.   

In his keynote address at the Second Annual Massachusetts Criminal Justice Reform Coalition Summit on March 16, 2015, less than a year after becoming Chief, Justice Gants emphasized that sentences should be proportionate, no greater than necessary, and designed to help the offender “get past the past.”[1]  “In medicine, there is a principle that a doctor should inflict no more pain and furnish no more medication than is necessary to treat the patient, and we need to act on a comparable principle in sentencing.” In his annual State of the Judiciary address in October 2015, Chief Justice Gants amplified his previous observations by noting that, “in a criminal case, problem-solving means not only adjudicating the question of guilt or innocence regarding crimes already committed; it also means crafting a fair and proportionate sentence that is designed to reduce the likelihood of recidivism and to prevent future crimes.” Given what we have learned about the maturational arc of adolescence and emerging adults, late adolescents between the ages of 18-25, the Chief’s observations are particularly relevant. As the noted lawyer and civil rights advocate Bryan Stevenson has observed, each one of us is more than the worst thing we have done.  The Chief’s admonitions are so important that they are cited in the report of the Juvenile Court Dispositional and Sentencing Best Practices Committee which I was privileged to chair.   

The Chief’s understanding of adolescent development and the importance of a fair and proportional  approach which achieves rehabilitative goals while best protecting the public was a theme of his jurisprudence. In Commonwealth v. Hanson H., 464 Mass. 407 (2013), he wrote the majority opinion addressing the issue of whether a judge is required to order G.P.S. monitoring for a juvenile who have been adjudicated of a sex offense as defined by G.L. c. 6 § 178C. Then Associate Justice Gants observed that it was not apparent that the legislature intended to apply mandatory G.P.S. supervision and “eliminate the discretion granted to juvenile court judges to render individualized dispositions consistent with the best interest of the child.” “We also conclude,” he wrote, “that where the legislature has established the statutory principle that as far as practicable juveniles should be treated not as criminals, but as children in need of encouragement and guidance (G.L. c. 119 § 53), we will not interpret a statute affecting juveniles, to conflict with this principle in the absence of clear legislative intent.” In reaching this conclusion, Justice Gants emphasized that our juvenile system is primarily rehabilitative.  In recognizing the adverse effects of G.P.S. monitoring on normative socialization and school functioning, he stated that “We have recognized that G.P.S. monitoring is inherently stigmatizing.”

The Chief’s insight into the stigmatizing collateral consequences of a juvenile record was also evidenced in Commonwealth v. Humberto H., 466 Mass. 562, 572 (2013), which authorized the juvenile court to allow pre-arraignment motions to dismiss in the absence of a finding of probable cause. In allowing a motion to dismiss prior to arraignment in such circumstances, Justice Gants noted that after arraignment a juvenile’s name and charge become part of the permanent Court Action Information record (C.A.R.I.) and may not be expunged, Gavin G. v. Commonwealth, 459 Mass. 470  (2002). The Chief cited Magnus M., 461 Mass. 459, 461 (2012), which allowed juvenile court judges to continue cases without a finding after jury adjudications.  The juvenile system “is primarily rehabilitative” and  “[p]rotecting a child from the stigma of being perceived to be a criminal and from the collateral consequences of a delinquency charge is important, even more important where there is no probable cause.” Access to juvenile and criminal records has been increasingly recognized as a punitive badge which, absent a much more robust model of record expungement or sealing than currently exists, becomes an eternal punitive badge. See e.g., Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (The New Press 2012, 2016).

Chief Justice Gants again displayed fealty to the medical model of limiting the dose and letting an offender get past the past in Commonwealth v. Henry, 475 Mass. 117 (2016), a criminal case involving restitution.  In this case, the opinion crafted by the Chief held that, in determining  restitution, a judge must make a finding regarding a defendant’s ability to pay as well as an assessment of loss by the victim. Of particular note is that probation may not be extended for inability to pay as doing so “subjects the probationer to additional punishment solely because of his or her poverty …. [a] judge may not extend the length of probation where a probationer violated an order of restitution due solely to an inability to pay.” This holding is particularly consequential for juveniles who rely on parents, guardians, or interested adults to support them.

In re: Care & Protection of Walt, 478 Mass. 212 (2017), involved a case in which Chief Justice Gants concluded that prior to the Department of Children and Families (DCF) removing a child from a parent’s care, the department take reasonable efforts before having the ability to justify the removal. This case reflects the Chief’s jurisprudence seeking to minimize unnecessary state intervention, which is especially important during the Covid-19 crisis. Prior to Walt, the orthodoxy had focused on Art. 30 separation of power case law limiting challenges to DCF custody to abuse of discretion. However, the Chief’s analysis now requires more rigorous inquiry into what reasonable efforts have been made to keep children with caretakers prior to removal and permits juvenile court judges to exercise equitable authority to order DCF to take reasonable remedial efforts to diminish the adverse consequences of failure of the department to having made reasonable efforts prior to removal.

In Lazlo L. v. Commonwealth, 482 Mass. 325, 328-330 (2019), the Chief authorized the retroactive application of 2018 juvenile justice reforms allowing dismissal of first offense crimes for juveniles carrying sentences of six months or less. He emphasized that “the Legislature understood that children who enter the juvenile system have a higher risk of re-offending for the remainder of their lives and … their risk of recidivism is greater the earlier they enter the system.” “We see no reason to delay the application of an amendment aimed at combatting the negative effects of Juvenile Court involvement on children and their communities.”

The Chief’s abiding conviction in ensuring equity was again reflected in one of the last cases he worked on. In his concurring opinion in Commonwealth v. Long, S.J.C. 12868 (Sept. 17, 2020), he supported the decision to adopt a new rule in allegations of racially motivated motor vehicle stops, which would place an initial burden on defendants to argue that there was a reasonable inference that stops were motivated by race or another protected class; and that in lieu of relying on statistical analysis, as previously required by Commonwealth v. Lora, 451 Mass. 425 (2008), defendants could rely on the totality of the circumstances regarding the stop. In noting that the justices had different ideas about the appropriate constitutional analysis, the Chief wrote that “… the court is unanimous in concluding that a motor vehicle stop that arises from racial profiling is unconstitutional …. [I]n short it is the unanimous view of this court that prohibition against racial profiling must be given teeth and that judges should suppress evidence where a motor vehicle is motivated, even in part, by the race of the driver or passenger.” Practitioners are already considering the implications of the case and tailoring arguments regarding racial profiling in all contexts.

Chief Justice Ralph Gants is not gone. He lives in all of our hearts. As former Chief S.J.C. Justice Margaret Marshall said during an October 27, 2020 event honoring her former colleague, “Now is not the time to grieve. It is time to get to work.” I concur. Ralph Gants was inspired by Deuteronomy’s admonition: Justice, Justice Shall You Purse. We should all follow his example.

[1] Available at http://www.mass.gov/courts/docs/sjc/docs/speeches/sjc-chief-justice-gants-remarks-umass-boston-03165.pdf.

Jay Blitzman served as the First Justice of the Middlesex County Division of the Massachusetts Juvenile Court. Prior to his retirement he was the founder of the Roxbury Youth Advocacy Project, a multi-disciplinary public defender unit which became the template for the creation of the statewide Youth Advocacy Division. Jay was also a co-founder of Massachusetts Citizens for Juvenile Justice (CfJJ) and a co-founder of Our RJ, a court and school-based diversionary restorative justice program. Judge Blitzman currently serves on the advisory boards of CfJJ, UTEC (Lowell) and is a Massachusetts Access to Justice Fellow working with More Than Words (MTW).  Jay was also a co-founder of the Massachusetts Bar Association’s Juvenile and Child Welfare section council and in 2018 was the first recipient of the MBA Juvenile Justice and Child Welfare Award. Jay also served as a member of the Boston Bar Association’s Cradle to Prison Pipeline and is a former BBA Brooke public service award winner. He is member of the American Bar Association’s Commission at Risk and is the ABA advisor to the Uniform Law Commission’s committee on The Criminalization of School Discipline. He is also a member of the Massachusetts Supreme Judicial Court’s Standing Committee on Eyewitness Identification. Jay writes and presents regularly on systemic juvenile and criminal issues and holds teaching positions at Harvard Law School (trial advocacy), Northeastern University School of Law (juvenile law), and Boston College School of Law (Cradle to Prison Pipeline). Judge Blitzman is also a faculty member at the Center on Law Brain and Behavior (CLBB- Harvard Medical School, M.G.H.) Jay chairs the Juvenile Committee of the Criminal Justice Reform Committee at Northeastern. Judge Blitzman was the 2019 recipient of the ABA Livingston Hall Juvenile Justice Award. The Committee for Public Services (CPCS) annually presents the Jay D. Blitzman Youth Advocacy Award.


Beyond Shelter: Sustaining Public Housing Communities During and After a Pandemic

by Kate Bennett and Joel Wool

Viewpoint

For nearly a century, through economic boom and bust, social progress and upheaval, and across many administrations, the Boston Housing Authority (“BHA”) has steadfastly provided “deeply affordable housing” for the City’s low-income residents. Established in 1935, the BHA currently ensures housing affordability for 58,000 residents in and around Boston. As the country continues to reckon with the COVID-19 emergency, the BHA’s mission to connect vulnerable residents to opportunities through housing has never been more urgent. This article highlights some of BHA’s efforts to support our public housing communities through the pandemic and beyond.

The challenges faced by low-income households cannot be overstated. Even before COVID-19, BHA residents—many of whom are elderly, disabled, people of color, and children—faced disproportionate levels of unemployment, food insecurity, and health risks, all of which have been amplified during the pandemic by a digital divide that threatens to isolate them from essential services, critical resources, and necessary systems of support. While local, state, and national governments grapple with the racial and economic disparities laid bare by COVID-19, BHA and other affordable housing providers have been tasked to expand their role through more front-line advocacy and direct assistance to better shelter our vulnerable residents from the impact of the global pandemic.

COVID-19 EMERGENCY RESPONSE

In March 2020, BHA responded swiftly to the public health crisis to safeguard our residents, employees, and the general public from the twin public health and economic crises:

  • Because housing authorities lack the authority to cancel rent payments even during a national pandemic causing crisis rates of unemployment, to ensure that tenants can remain safely in place without fear of becoming homeless, on March12, 2020, the BHA announced its immediate suspension of all “non-essential” (i.e., not critical to public health and safety) evictions for the duration of the Massachusetts state of emergency, and later extended the agency’s moratorium to at least through the end of 2020. The BHA, in concert with Mayor Walsh and other city partners, also urged the Housing Court’s cooperation in suspending all pending and new non-essential eviction cases in light of the significant health and safety risks exposed to all during court proceedings.
  • Consistent with evolving guidance, BHA implemented preventative measures to encourage social distancing and frequent cleaning and decontamination, including temporary closure of certain indoor common spaces, limitations on visitors in elderly housing, and postponement of inspections to reduce exposure and transmission risks in our vulnerable housing communities.
  • Working with the U.S. Housing and Urban Development and the state Department of Housing and Community Development, BHA shifted mission-critical operations to remote and electronic platforms with streamlined and flexible documentation requirements and extended deadlines, including the processing of applications, admissions, issuance of vouchers, transfer requests, annual and interim examinations, and even housing quality inspections.
  • BHA adapted interactions with residents, encouraging open lines of communication via telephone, fax, and e-mail; establishing an on-line rent payment option; providing secure drop-boxes for submission of rent and documents for households without internet access; limiting in-person transactions to locations with appropriate ventilation and space for social distancing; and ensuring important notices and information are disseminated in a manner accessible to persons with communication-related barriers including disabilities, language needs, and technology challenges.

CARES ACT SUPPORTIVE INITIATIVES

In April 2020, BHA modified many of its policies and procedures under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act to better address the escalating loss of income due to COVID-19. For example, the BHA encouraged prompt reports of job loss and requests for minimum rent hardship exemptions, allowed unlimited, retroactive interim rent reductions for loss of income, and continued to limit out-of-court rent repayment agreements to 40% of the household’s adjusted monthly income, inclusive of the tenant’s regular rent share.

In May 2020, with COVID-19 exacerbating health issues, driving up household expenses, and worsening transportation-related barriers to accessing food and other necessities, our residents clearly needed more help. Consequently, BHA prioritized the use of its CARES Act funds not only to maintain existing operations but also to implement new initiatives to support the health, safety, and quality of life of our residents, including:

  • a multi-million dollar food contract with local minority- and women- owned businesses to ensure the reliable and safe delivery of sufficient fresh foods to BHA families and seniors facing food insecurity and barriers to safe access to grocery stores.
  • economic incentives to encourage landlord participation in a new homeless voucher program for families with children in Boston Public Schools.
  • distribution of free laptops and tablets for residents and technology upgrades to improve connectivity to improve remote access to education, jobs, and other opportunities and resources, and to reduce social isolation.
  • reconfiguring community rooms and other common spaces for the continued safe use by residents and to facilitate safe interaction within the housing community.
  • direct efforts to reach and support residents, from staff distribution of food, masks, and cleaning supplies to safe and socially-distanced support of youth engagement programs, such as a multi-media project where young BHA residents filmed their experiences of the pandemic within their family and community.
  • support of resident empowerment, leadership and participation in BHA policy development and planning activities through regular, facilitated virtual meetings with tenant organizations, including providing technical training, free tablets, and interpretation services.

PRESERVING AND CREATING AFFORDABLE HOUSING

Pandemic notwithstanding, the BHA has forged ahead with its plans for the renovation of all of its affordable housing facilities and pursuit of opportunities to create additional affordable housing units in the City. For example:

  • Through the summer and fall of 2020, BHA has used virtual platforms to advance the permitting process for the redevelopment of its 1,100-unit Bunker Hill federal public housing site into a mixed-income community through a public-private partnership, leveraging rents from additional, new market-rent units to support the 1-for-1 replacement and conversion of the existing deteriorated public housing units. Similar initiatives are underway throughout Boston to rehabilitate and preserve the affordability of BHA’s aging public housing stock, including at Mildred Hailey in Jamaica Plain, and Mary Ellen McCormack in South Boston.
  • BHA also launched “Generations BHA,” a plan to renovate and modernize BHA’s entire 3,600-unit federal elderly/disabled portfolio, including accessibility improvements, energy efficiency measures, plumbing, electrical, and fire protection. All Generations BHA units will remain under sole public ownership but convert from a public housing to a Section 8 Project-Based Voucher (“PBV”) subsidy platform.
  • BHA and City of Boston recently announced the preservation of 48 “expiring-use” units at the Mercantile Wharf in the North End using Section 8 PBVs.
  • A new Boston-funded municipal voucher program is anticipated to stabilize the housing of additional low-income Bostonians through a mix of project- and tenant-based rental assistance.

FUTURE DIRECTION

Even before the pandemic, the BHA provided the City’s low-income residents with much more than shelter. Today, when COVID-19 exposed a dangerous widening of historic disparities in income and access to safe and stable housing, and unprecedented levels of social isolation among low-income and elderly residents, BHA is redoubling its efforts to provide our residents with vital connections to achieve economic self-sufficiency and housing mobility, and to build a more just and equitable 21st-century society in which all families are able to meet their basic needs.

Kate Bennett is the Administrator and CEO of the Boston Housing Authority.  She oversees public housing and housing choice voucher programs that provide affordable housing for more than 50,000 people in and around the City of Boston. 

Joel Wool is Special Advisor for Policy and Planning for the Boston Housing Authority. Joel has supported BHA in directing state and federal COVID relief funds to critical initiatives and social equity measures. He is project lead on the new municipally- funded voucher program.

 


Zoning Reforms Needed to Dismantle Discriminatory Land Use and Build More Affordable Housing

by Eric Shupin

Viewpoint

Discriminatory government policies in zoning and land use over the last 50 years have intentionally created racially segregated communities with concentrated areas of poverty. More than a half-century since passage of the Fair Housing Act of 1968, “even as metropolitan areas diversify, white Americans still live in mostly white neighborhoods.” In the Boston area, residential racial segregation exceeds the national average significantly, with Black and Hispanic households overwhelmingly residing in communities with the greatest educational challenges, limited resources, and the poorest educational, economic, and health outcomes. Alarming emerging data from the COVID-19 pandemic suggests that in urban cores, “[b]lack and brown people are dying at rates more than twice their share of the population”—likely because high density urban areas are comprised disproportionately of racial minorities with higher prevalence of preexisting poor health-related conditions. The racial gap in COVID-19 deaths exposes the urgent need for bold government intervention to undo the legacy of decades of exclusionary zoning that continues to perpetuate residential segregation in the Commonwealth.

AFFORDABLE HOUSING SHORTAGE AND SEGREGATION

An adequate, affordable housing supply throughout Massachusetts is critically necessary to disrupt existing patterns of residential segregation. As of 2018, 32% of Black and 16% of Latinix/Hispanic residents of Massachusetts lived in Boston. This is compared to the state’s overall population breakdown of 7% Black and 12% Latinx/Hispanic.

Not nearly enough housing has been produced outside of Boston over the past 30 years. Between the 1960s and the 1990s, annual housing production in Greater Boston actually dropped by 52 percent, and, multifamily housing production dropped by more than 80 percent. Consequently, rents and home prices in the region have been perennially among the highest in the nation, placing an increasing and unsustainable burden on renters, especially lower-income residents who are disproportionately people of color. In 2017, with only about three new housing units permitted for every thousand residents, Greater Boston continued to rank among the top-five in average housing costs and ranked 18th in housing production among the nation’s 25 largest metropolitan areas.

An adequate housing supply can help stabilize prices and enhance affordability, but production alone will not address the Commonwealth’s persistent patterns of racial residential segregation. Legislation and land use policies that explicitly address the need for affordable housing to be equitably distributed throughout Massachusetts are needed. Since its enactment in 1967, Chapter 40B has been the main statutory means to incentivize affordable housing production statewide. It empowers local Zoning Boards of Appeals in jurisdictions that have not met the 10% Subsidized Housing Inventory (SHI) “safe harbor” threshold to approve “comprehensive permits” for denser, larger, and higher development projects than would otherwise be permitted under local rules if they contain 20–25% affordable units. In the past 50 years, Chapter 40B has helped create over 60,000 homes, but, after all those years, currently only 67 of Massachusetts’ 351 municipalities are at or above the 10% SHI threshold.

Although Chapter 40B has helped, the Commonwealth still faces serious challenges to combatting patterns of residential segregation. Massachusetts needs additional zoning tools and reforms to overcome our legacy of restrictive zoning.

RESTRICTIVE ZONING AND FAIR HOUSING  

The Massachusetts’ Zoning Act, G.L. c. 40A (“Chapter 40A”), delegates to all municipalities (except Boston) the power to enact their own zoning codes to regulate the use of land, buildings, and structures for the purpose of protecting the “health, morals, safety and general welfare of the community.” While the Legislature retains the ultimate authority to set zoning policy for the Commonwealth, in practice, local zoning laws represent the piecemeal expression of their  development preferences and local control over such externalities as population growth, traffic congestion, noise, aesthetics, and property values. Without reform, most Massachusetts’ communities will continue to restrict the development of all but the most expensive—and exclusive—type of housing: single-family homes on large lots.

According to Massachusetts’ 2019 Analysis of Impediments to Fair Housing, density-restrictive zoning raises serious civil rights concerns because low-density developments tend to exclude Black and Hispanic residents disproportionately, whereas multifamily rental options promote the inclusion of traditionally excluded minority households.

ZONING REFORM TOOLS

Statutory zoning reform, coupled with judicial development of a more restrictive doctrine on abutter standing, can complement existing incentives, such as Chapter 40B and the Housing Choice Designation.

Enacting Housing Choice

We can start by amending Chapter 40A to make it easier for communities to pass local zoning changes that encourage more housing and “smart growth” development. Currently, any zoning change requires a two-thirds vote by all members of Town Meeting or city council. G.L. c. 40A, § 5. Without amendment, this often insurmountable threshold will ensure the status quo of our exclusionary land use practices.

H.4263, initially filed by Governor Baker, would enable municipalities to pass by a simple majority vote a narrow set of zoning changes related to multifamily housing, including mixed-use developments and accessory dwellings (or in-law apartments), and to approve special permits for certain affordable housing developments that are consistent with smart growth principles. Other zoning changes that might further restrict new and/or affordable housing, such as increasing dimensional requirements, would continue to require a super-majority vote. If sufficiently coupled with subsidies to build affordable housing, this measure would make a substantial impact by empowering the simple majority of the community to vote for such zoning amendments in favor of housing.

Curtailing Frivolous Abutter Challenges

Massachusetts’ jurisprudence on standing has accorded disproportionate power for abutters to challenge a project for the improper purpose of obstruction and delay. Abutter challenges—even without merit—can hold up affordable housing construction sufficiently to make the project financially unviable.

In Murchison v. Sherborn, a decision issued in less than 24 hours, the Supreme Judicial Court ruled that abutters must prove they would suffer some kind of demonstrable harm to have standing to bring a legal challenge to a project. While the claim that a proposed single-family home on a 3-acre neighboring lot would cause density-related harm may be an extreme case, the case exemplifies the frivolous type of challenges many affordable housing developers face. To promote the creation of more diverse housing types across Massachusetts, we must encourage a new jurisprudence or take legislative action on standing to deter frivolous abutter challenges of locally-supported affordable housing developments.

Inclusionary Zoning

Each municipality can also adopt its own inclusionary zoning policy to require a certain portion of a housing development to be set aside as affordable. For example, Boston’s policy currently requires 13% to be set aside as affordable; Cambridge requires 20% to be income-restricted. The challenge for such policies is that sufficient density is required to make a mixed-income development economically feasible: if the required set aside for affordable units is too high, inclusionary zoning can have the unintended consequence of discouraging new development that can foster diversity in communities that are traditionally opposed to increased density. It is also dependent on a community approving projects large enough to trigger the policy in the first place. Even with these limitations, such policies are an important tool to combat exclusionary zoning.

CONCLUSION

Zoning is a powerful legal and public policy choice: it determines what gets built and where and who gets to live in a community, as well as who is excluded. Zoning reform is long overdue in Massachusetts to remediate our history of residential segregation. H. 4263 is a first step for Massachusetts to start building desperately needed diverse housing opportunities.

 

Eric Shupin is the Director of Public Policy at Citizens’ Housing and Planning Association. Shupin is the public policy co-chair of the Boston Bar Association’s Real Estate Section. Shupin holds a J.D. from The George Washington University Law School. The opinions expressed in this article are his own.


Walk in My Shoes: A Day in the Life of a Black Woman Attorney

by Danielle Johnson

Viewpoint
*This article is a companion piece to “Owning The Space: A Candid Conversation with Supreme Judicial Court Associate Justice Kimberly S. Budd.”

 

If you approach the steps of the Edward Brooke Courthouse (named after the first African-American elected to the U.S. Senate since Reconstruction) around 8:45 A.M. on a Thursday morning—colloquially known as “Eviction Thursday” in Boston—there is a seemingly endless line of people, mostly in street clothes, waiting anxiously to get through the security screening. I approach, dressed in a suit and dress shoes with my hair neatly dreadlocked.  I walk quickly past the lines of waiting litigants with my bar card and driver’s license in hand.  I am a young African American woman and I am an attorney.  In court, I am both an anomaly and a chameleon, depending on whom I encounter.

The Court: The Tale of Two Lines

The familiar discomfort starts outside the courthouse.  To get through the door of the courthouse to the Eastern Housing Court sessions on the fifth floor, I must walk past the long lines of fellow people of color waiting to submit themselves to the security screening—that often includes an electronic pat-down—before being allowed in the building.  It is my weekly routine to swallow the discomfort of the two lines; one short line for predominantly white attorneys and another longer line for the litigants, including my clients, predominantly people of color.  I present my bar card and driver’s license, and after close inspection—notably which are not scrutinized for my white colleagues who flash their cards and proceed before me— I am allowed to pass the first test and enter the foyer of the marbled courthouse.

Inside, the courthouse is buzzing, and the clamor of chatter and movements echo throughout the hallways.  I make my way up to the fifth floor for the call of the lists.  Exiting the elevator, the scene that awaits can overwhelm an unsuspecting person, but it is business-as-usual for Eviction Thursday.  The two “Attorney of the Day” tables are set up to provide quick legal advice, one for pro se landlords and the other for pro se tenants.  The area is so crammed with people that one cannot see the Attorneys of the Day.  This is not surprising given that in 2019 alone, 39,600 households faced eviction in Massachusetts.  Of these, 92% of the tenants were unrepresented; in contrast, more than 70% of landlords were represented.

At the “Attorney of the Day” table for tenants, I flip through the dockets and see the usual massive number of new eviction cases – about 150 in total – and 55 motion hearings on the two lists.  The day will be long. I brace myself for the ongoing series of tests that I will face, each of which will demand that I prove who I am, making Eviction Thursday an even more exhausting day.

The Client: “You’re My Lawyer?”

Finding my client among the sea of black and brown faces who are anxiously searching for answers from anyone who might be willing to listen is do-able if I have previously met the tenant.  Today is not that day.  Working in legal aid, where there is a mismatch between high demand and limited resources, I often walk through the hall shouting out names of clients I will meet for the first time in court.  When my first call does not yield a response, I call again.  Success!  I formally introduce myself to the client and field the expected question: “You’re the attorney I spoke with?” Surprise mixed with suspicion registers on my client’s face.  For my clients, it is my youth that is concerning. I am used to this look of doubt as an attorney who practices exclusively with elders; this is my second test of  the day.  It is the unspoken challenge to my legitimacy raised by my appearance.   I deflect their anxiety with humor using stereotypical images of attorneys common to their generation: “I must look adolescent, not the Matlock or Perry Mason you were expecting?” To get past the awkwardness, I direct my client’s attention to the goal for the day and what to expect in the courtroom.  But sometimes this is not sufficient assurance.  I confidently explain to my client that this is “not my first rodeo,” and hope that I have gained their trust.  I leave them to their thoughts and move on to find opposing counsel.

The Bench and the Bar

Housing courts tend to have their usual players, so locating a specific attorney is not often difficult. Again, today is not that day.  Like a chameleon, I pass unnoticed through the tenants, a sea of brown and black faces crowding the halls while waiting anxiously for the courtrooms to open, and quickly scan each white individual in a suit. In the courtroom, shades of brown dominate, speckled here and there by clusters of ivory.  I am not the only person of color, or the only woman, or the only person of modest economic means. Even so, there is a clear dichotomy: the majority of the tenants are minorities while the majority of attorneys are white and male.  Then there is me.

As the list is called, the attorneys jockey for seats in the jury box.  In that segregated space, protected against the huddled masses packed into courtroom, the color scheme flips; today, I am the only grain of pepper in a sea of salt.  I sigh, recalling the day the court officer singled me out: “Hey, you can’t sit there.  You a lawyer?” Moving past colleagues to an empty seat, I speculate that they are wondering: “Does she know this section is for attorneys?”  This is the daily reality of what it means to be an attorney of color in Massachusetts, navigating unwritten tests to prove that I exist, I am qualified, and that I belong.

Once the call of the lists begins, the doors to the standing-room only courtrooms are shut.  Any defendant not present in the correct courtroom for the call will be defaulted.  Most tenants who answer are visibly anxious.  Once referred to court mediation on the third floor, some will go over agreements with a housing specialist, but most will be diverted to sign, without the benefit of a hearing or trial, the pre-drafted form agreement for judgment offered by the landlord’s attorney.  This is accomplished quickly in the hallway, often with no understanding on the part of the tenants of the document they have signed, including the waiver of their right to request a stay, seek reconsideration, or pursue an appeal.  Instead, they blindly focus on the quickest option that allows them to remain in their home and escape the stress of being in court.

My client, who was previously pro-se, had signed such an agreement for judgment with the landlord. The slightest breach of any of its conditions, including all incorporated lease terms, is deemed material and could trigger an execution for possession – and the agreement waived all stays of execution.  But today, there will be no execution for possession.  Today, I have prevailed in negotiating an amendment to the “Sword of Damocles” agreement, and substituted a sustainable repayment plan with sufficient time to access third party rental assistance through the Residential Assistance for Families in Transition (RAFT) program for the onerous agreement for judgment.  I also connected the elderly client to the court’s Tenancy Preservation Program (TPP).  I am the most pleased with my success in changing the basis for the eviction from “fault” to “no-fault,” thereby protecting my client from mandatory termination of their Section 8 Housing Choice Voucher.

I have passed today’s last test.  I achieved a successful outcome.  I demonstrated my competence to my client and proved my negotiation skills to an opposing counsel with whom I had not worked with in the past.

Legal Aid and the Massachusetts Bar

Back at my office at Greater Boston Legal Services, my shoulders relax.  Here, I am not burdened by expectations to conform to the culture and hierarchy of a Boston law firm.  I am not oppressed by inadvertent stereotyping nor subject to daily microaggressions that would stunt any lawyer’s professional growth.  Notwithstanding, my dominant experience navigating my chosen profession is one of alienation, exclusion, and discomfort—the price that I pay under the “invisible labor clause” for being a black woman legal aid attorney in Massachusetts, serving the poorest people in Boston who are predominantly people of color, like me.

In my career, I have experienced racism, gender discrimination, and elitism.  My experience is not unique.  Throughout the Commonwealth, attorneys of color are called upon to prove their qualifications daily, to colleagues, clients, court personnel and even clerks and judges.

The 2019 demographic survey conducted by the Supreme Judicial Court, in collaboration with the Massachusetts Board of Bar Overseers, revealed that out of 22,743 participating attorneys, 20,043 (86%) identified as White, and only 494 (2%) identified as Black or African American, 519 (2%) as Hispanic or Latinix, and 574 (2%) as Asian.  These numbers make clear what my experience has proven—there is a gross lack of minority representation in the Massachusetts bar.

This is not a “woe is me” story.  It is a call to action for cultural diversity in law firms and legal organizations and, more importantly, for reflection on and recognition of each of our implicit biases. My day is over, but these challenges will repeat tomorrow and next week and every month thereafter with a new list of scared, mostly poor, minority tenants, assembled in lines to enter a courthouse, named for the first African American Attorney General of Massachusetts, all in effort to get “justice.”  We should do better.  We can do better.

 

Danielle Johnson is a Staff Attorney at Greater Boston Legal Services where her practice focuses on elder housing and disability benefits. Danielle also participates in the Lawyer for the Day Program at the Metro South Housing Court, assisting tenants. Danielle is also a member of the Boston Bar Association, the Massachusetts Black Lawyers Association, and the Massachusetts Black Women Attorneys.


Owning The Space: A Candid Conversation with Supreme Judicial Court Associate Justice Kimberly S. Budd

by Sophia Hall and Justice Kimberly S. Budd

Voice of Judiciary
*This interview is a companion piece to “Walk in My Shoes: A Day in the Life of a Black Woman Attorney” by Danielle Johnson.

 

I was fortunate to recently talk with Justice Kimberly S. Budd about her career path and her experiences as a woman of color in the legal profession.

SH: What drew you to the law?

KB: I was lucky in that my Dad was a lawyer so he exposed me to the law. I have to admit, though, that when I was a kid, I did not really have an understanding of what a lawyer did. I do remember going in to work with him on the weekends, and helping him by pulling files. That’s what I grew up in. When I graduated from college, I went on to law school because I didn’t know what else to do (I majored in English). In hindsight, I wish I had taken a year to work between college and law school. I felt really young and inexperienced in law school.

SH: Has your identity as a woman of color affected your experience as a judge?

KB: I think it is fair to say that being a woman of color affects every part of my life, including being a judge.  The piece written by Danielle Johnson about her experiences in Housing Court brought back similar memories of my experience as a young litigator.  I have been mistaken for a defendant’s girlfriend by a court officer, and have been underestimated by countless numbers of opposing counsel over the years.

As a judge in Superior Court, it was clear that attorneys, litigants and jurors were not expecting to see a Black woman judge when they came into the courtroom.  I remember one particular afternoon I was sitting in a civil motion session in Middlesex County and working with a Black woman courtroom clerk and a Black woman court officer.  I think those who had business in the “D” session that afternoon were surprised to see our team!

When I handled criminal cases, many of the defendants were Black.  I like to believe that it made a difference for them to see someone who looked like them on the bench,  especially if everyone else in the courtroom was White.

SH: What was your experience with Judicial Evaluations?

KB: State court trial judges are evaluated periodically by practitioners who are surveyed anonymously.  The evaluations have both objective and subjective components, resulting in a numerical rating, and written comments. In 2014 a review of the judicial evaluations showed that judges who were of color and women judges consistently received lower ratings than White male judges.  Attempts were made to figure out how to account for bias, implicit or otherwise.  We haven’t come up with a solution, and I’m not sure that there is one.  The evaluations reflect the biases that exist in our society.

I have to admit that whenever I received my evaluation results, it was difficult to look at the comments.  Many were good, but it was the negative ones that consumed my attention.  After my first evaluation I stopped looking at the written comments altogether.

SH: You are the third African American ever appointed to the SJC, correct?

KB: Yes, and the second Black woman. Chief Justice Rodrick Ireland was the first African American appointed to the court in 1997 (the first in the Court’s over 304 year history).  He subsequently became the Chief Justice in 2010.  He was an excellent chief—and a great leader; everyone thought he did an amazing job. He was cognizant of the fact that his performance likely would affect the way judges of color who came after him would be perceived.. When Chief Justice Ireland retired, Justice Geraldine Hines replaced him and was the first African American woman.

SH: Can you describe your relationship with Justice Hines?

KB: I have been fortunate to know Gerri for a long time.  She started in the Superior Court, back in 2001.  I remember attending her swearing in ceremony when she first became a judge and being so excited for her and for the Commonwealth.  Little did I know that eight years later I would be her colleague on the Superior Court.  She was my mentor there, and again when I joined the SJC.  It makes such a difference when you have someone in your corner showing you how to do the job, answering your questions and rooting for you to succeed. Her presence on the SJC when I arrived was huge. And her absence is still felt (she retired in 2017).  She is only a phone call away though!

SH: The future of the SJC. Do you see more diversity coming?

KB: I sure hope so.

I would hate to think that anyone would use my presence on the Court to support an idea I am one of just a handful of people of color who are qualified to be a Justice of the Supreme Judicial Court.  That certainly is not the case.  I also cringe when I think there are some who might believe that I am here only because they needed a Black person to fill a slot. Even though diversity and inclusion are and should be priorities for the Commonwealth’s judiciary system and in many workplaces, I believe that I hold my own on the SJC. I am not just taking up space.  And like Danielle, I work every day to prove it.

 

Kimberly S. Budd is an Associate Justice for the Massachusetts Supreme Judicial Court (“SJC”), where she has served for nearly four years, and a former Justice of the Massachusetts Superior Court. She was appointed to the Superior Court by Governor Devall Patrick in 2009. Justice Budd was a litigation associate at Mintz Levin, an Assistant United States Attorney in the United Stated Attorney’s Office for the District of Massachusetts, and a University Attorney for Harvard University in the General Counsel’s Office. She also worked at Harvard Business School as the Director of Community Values. Justice Budd earned her bachelor’s degree in English from Georgetown University and her law degree from Harvard Law School.


Life Raft or Quicksand?: Emergency Assistance’s Role in Greater Boston’s Homelessness Crisis

by Laticia Walker-Simpson

Viewpoint

Homelessness in Greater Boston was rising even before the economic fallout from the COVID-19 pandemic. From 2008 to 2018, the region experienced a 26.7% increase in homeless families and a 42.5% increase in homeless individuals. As rents skyrocketed and the shortage of affordable housing worsened, the state’s Emergency Assistance (“EA”) shelter program has strained to meet the need of the growing number of eligible households. The public health emergency has laid bare the structural problems with the state’s housing safety net program all too familiar to those working directly with the vulnerable population.

To meet the statutory mandate to provide Shelter to impoverished households, the Commonwealth must substantially increase funding for the EA program, implement measures to create more housing affordable for extremely low income residents, and adopt initiatives to address the displacement crisis, such as right to counsel in eviction cases and rent control.

“Right to Shelter”

In 1983, Massachusetts enacted a “Right to Shelter” law, Chapter 450 of the Acts of 1983, and established the state’s first publicly-funded homeless Shelter for families while they search for more stable housing. Although referred to as a “right to Shelter” jurisdiction, the Commonwealth imposes strict threshold eligibility requirements for applicants to be eligible for EA Shelter: families must be Massachusetts residents; at least one person must have qualifying immigration status; the family must have a qualifying child under age 21, and the overall household income must be at or below 115% of the federal poverty level.

Additionally, the family’s homelessness must have been caused by one of four qualifying reasons: (1) domestic violence; (2) fire, flood, or natural disaster not caused by a household member; (3) a health and safety risk that is likely to result in harm; or, (4) eviction due to certain circumstances that are generally beyond the control of the tenant household, such as medical situations.

A household will be barred from EA Shelter for a variety of reasons, including “intentionally reducing” income to become eligible for benefits (i.e., EA shelter or a housing subsidy); receiving EA Shelter benefits in the last year; abandoning public or subsidized housing without good cause; or being evicted due to criminal activity, destruction of property, or non-payment of rent for public/subsidized housing.

Once admitted to an EA Shelter, the household must meet certain mandatory participation requirements, such as saving 30% of their income, spending 20 hours per week in housing search, job search, or in education or training programs like financial literacy classes. Participants are also required to complete chores in the Shelter, including cleaning the facilities’ kitchens and bathrooms.

A Perverse Cycle

The Commonwealth’s shortage of affordable housing for low and extremely low income families is driving the need for EA Shelter. At least three in ten low-income people in Massachusetts are either homeless or must pay over half of their income in rent.

Since 2013, the average length of stay in EA Shelters across the state is 267 days. Only 12% of families exit the EA program within one month, 28% exit within three months, and 27% stay for more than a year and up to 5.6 years. Compared to an average of 247 days in 2008, in 2013 homeless families spent an average of 300 days in EA Shelters. The duration has been about 150 days longer in the Boston and Central regions than in the Southern and Western regions. This disparity is not surprising given the higher cost of housing in Boston where, for example, the rent for a two-bedroom leapt from $1,237 in 2010 to $1,758 in 2019.

With the lengthening duration of stay in EA Shelters due to lack of permanent affordable alternatives, more families are placed farther away from their home communities and face limited transportation options to their original places of employment, child care, medical care, education, and important networks of support. And case workers assigned to each EA family face increased caseloads, reducing the time they can spend assisting each family with housing search and accessing other resources necessary to transition out of homelessness.

The budget for the EA program has not kept pace with the expanded need for EA Shelter and increased cost of temporary EA housing. In fiscal year 2013, 39,436 homeless families were served by the EA budget of roughly $156.5M (adjusted for inflation). In fiscal year 2019, 43,392 families were served by the allocated EA budget of roughly $179.8M (exclusive of any supplemental budget).

To meet the increased demand, the EA program has placed many families in inexpensive private apartments. These private market EA placements have resulted in the unintended, albeit foreseeable, consequence of further shrinking the supply of “naturally occurring affordable housing” (“NOAH”) available as permanent housing options, including for EA participants. That is, by competing in the private rental market for EA temporary placements, the state’s efforts have had the perverse effect of further decreasing the supply of NOAHs available to low-income families, thereby pushing more vulnerable households into homelessness, and exacerbating the supply barriers to permanent housing for EA participants, thereby extending their time until exit from the EA program. It is a pernicious and inefficient cycle.

The related trends of longer EA stays and shrinking permanent affordable options has transformed the EA program from its original purpose as a short-term measure to help families get on their feet into a long-term housing placement system for those with limited prospects for transitioning to stable, affordable housing. This dynamic is unsustainable at current levels of EA appropriations.

The COVID-19 pandemic has also underscored the public health costs of a system operating beyond capacity. EA Shelters are primarily comprised of congregate housing, where each family has a private room but shares a kitchen, bathroom, and living space with other families. Congregate physical facilities make social distancing impossible and contributes to the spread of the virus. The reduction in on-site staffing due to the public health emergency also means cleaning and maintenance also has come under increased strain.

Needed Reforms 

Creativity and determination are necessary, but not sufficient, to disrupt the current inefficient patterns and cycles in the operation of the EA Shelter system. A substantial increase in EA Shelter appropriations will also be necessary, along with expansion of staff trained to develop resources, capacity, and resilience within homeless families, and more systemic efforts to preserve NOAHs as permanent affordable housing options.

The most effective, preventative response to the homelessness crisis would be a form of rent control. A more immediately needed response in the face of the tsunami of evictions expected at the end of the temporary eviction and foreclosure moratorium, Chapter 65 of the Acts of 2020, is a Right to Counsel legislation that would reduce the number of low-income residents who are evicted and need EA shelter by providing attorneys to low-income tenants, the majority of whom presently go unrepresented.

The pandemic has exposed the need for systemic reform for the EA program to operate effectively to mitigate the traumatic human, medical, and social costs associated with homelessness and to transform the “Right to Shelter” from a paper promise into a sustainable reality for our Commonwealth’s neediest families.

 

Laticia Walker-Simpson is a Staff Attorney focusing on EA Family Shelter in the Housing Unit at Greater Boston Legal Services. She co-chairs the Mentor project at GBLS and is part of the Massachusetts Right to Counsel Coalition. She is an avid baker.