-: SJC 13536, in the matter of an impounded case.
-: Okay, Attorney O'Connor.
-: Thank you, good morning.
And may it please the court,
Ann O'Connor on behalf of the petitioners.
The question before this court is whether the single justice
abused its discretion in declining
to direct the first justice of the Boston Juvenile Court
or BJC to either vacate the court's policy
for scheduling non-emergency motions,
or clarify an apparent misunderstanding about the court's
requirements for obtaining a motion hearing.
In his decision, the single justice accepted
that the BJC's policy requires counsel for a child
or a parent who wishes to be heard on motion,
on non-emergency motion,
to obtain agreement from all other counsel on the case
to at least five possible motion hearing dates
before filing the motion,
which they do via an advancement form.
But it emerged in the filings
before him that as the single justice repeats at, pardon me,
the first justice, pages 8 and 10 of her brief,
the court routinely acts upon advancement forms
that contain fewer dates
and the court's data show that the court will advance cases
where there are actually no agreed to
hearing dates on an advancement form.
Two BJC employees stated in affidavit that the five day,
the five agreed upon date requirement, what counsel
who practice in the court believe is a requirement,
is in fact simply a recommendation.
And the BJC'S data also shows that a party is going
to be heard more quickly if their lawyer
gives no agreed upon,
most quickly, if the lawyer gives no agreed upon dates
on the advancement sheet.
A little less quickly,
if the lawyer gives between zero and four dates,
and if the lawyer adheres to
what they reasonably believe is a five day,
five agreed upon date requirement,
it's gonna take the longest for those people to be heard.
-: Counsel, can I just interrupt you for a minute,
and I understand that in your papers you included
some extreme examples of really long waits,
but if memory serves, isn't the record here
that the average is somewhere between
13 and 20 something days?
-: Yes, your Honor, unfortunately,
and I regrettably didn't appreciate this
until I was preparing for today,
the data that we have from the BJC,
it does doesn't really help us
because it's not just,
I took it to be all the motions filed in C&Ps
for this 55 week period or care protection cases.
I apologize.
In fact, in preparing and rereading the affidavit
from the judicial secretary
who put the data together,
it's all motions filed in the BJC over those 55 months.
It's motions filed in C&Ps,
motions filed in children requiring assistance cases
and motions filed in delinquency cases.
And there's no delineation of, so we don't know
how long parents and children in care
and protection cases wait on average
because we just have the numbers for
the three different kinds of cases.
-: Well, it would seem to be a problem
for you if that's the case with what we have.
Because what we have seems to suggest
you've got a juvenile court department division
that's incredibly busy that does incredibly important
and serious work, some of the most serious work
that we do in the Commonwealth,
which you're a part of that ecosystem.
So I'm just, the procedural due process claims
that you're talking about are really, really important.
I'm just struggling to find,
in the grander context of those kinds of weights,
that the court trying to get the parties to get dates
that work for everybody so we don't have further delays
with just picking these arbitrary dates
from the clerk's office that now we get all
of these motions from everybody saying,
oh, that date doesn't work for me.
I just, I'm struggling to see
where the single justice abused his discretion in this case
because I just don't see where the answer is to this.
-: I think the, the most clear answer is in
declining to require the first justice
to let everyone know
that you can give fewer than five agreed upon dates
because the only place that appears
is in impounded materials.
So the practitioners,
and you have affidavits from eight practitioners
who have practiced in the BJC between, I believe it's six
and 28 years roughly, who all believe
that five days are required
and who all say requiring five days,
particularly post pandemic.
I mean, this practice has existed
for a very long time.
In fact, the clerk magistrate
says it's the most efficient way
to do it, but it's the only way the court's ever done it
in the entire time she's been there.
So the practice has existed for a very long time.
The practice became untenable after COVID
because lawyers are no longer,
they are together every day.
Can you do this date to you?
Can you do that date, you know, when we're all together?
-: I guess I don't really understand that.
Why can't you just shoot an email
to opposing counsel or a text?
-: That's what they do, your honor.
And what they found is there's a difference.
And I think, human nature,
if you and I talking, right,
-: There's a difference, right?
Yeah and I understand the example that you're about
to give, but it's a constitutional difference.
You're suggesting there's been a due process violation.
Explain that, why the rapidity
of finding a mutually convenient date via text
creates a due process problem
that it doesn't create when it's live.
-: I believe the experience
and certainly the affidavits show that
what the lawyers who do this every day
and have done this every day for years
and years are are experiencing is that while it used
to be easy to get a date from a colleague
you saw every day, you're all in next Thursday,
maybe you have three cases on,
what's taking on one more,
versus when I'm emailing that colleague who doesn't have
to come to court very much, very often anymore.
And when they're there, they're usually in and out.
Maybe now they're giving me the dates that are convenient
for them as opposed to the dates they can do.
And that's resulting in putting dates out.
And I think one of the examples is in the (indistinct) case
where she wanted a July date
after conferring with all counsel
and that takes a while.
The soonest date she could get was two months out.
And my sister says, well, there's no due process problem
because she got the date she asked for.
Well, that's not the date the human being
who was without her children, for all these months.
-: It's not, but I'm with Justice Wendlandt on this
constitutional infirmity
because what you just described to me seems to be more
of an ethical issue than a constitutional issue.
Because if lawyers are picking dates that are convenient
for their schedule versus their clients,
how is that a constitutional issue
and how is that the first justice's problem?
-: I think, and I know I said at the beginning
that the data is not helpful in determining
how long it it takes in a C&P case.
I do maintain that,
but the data does show that regardless of what kind
of case it is, the fewer dates you give,
the quicker date you get.
So I think that's what the problem is.
So requiring the five dates,
and again, if it's not required,
then if the single justice would let folks know that,
or pardon me the first justice, sorry,
then there'd be less of a problem.
But to date, it's only existed in, again,
in impounded documents.
I suppose now that we are here, the word may get out
and that maybe is gonna help.
But to this point, it's not been something
that the first justice has been willing to tell the whole.
-: When you say hasn't been willing to tell,
have you had a meeting with her?
Have you tried to discuss this and that?
-: We had one meeting in October
that was unhelpful, unavailing.
We met again, we, I'm sorry.
I asked to meet again in November.
The first justice declined
and then I asked the first to resolve this matter
for the first justice, just to make
that announcement on her own.
And she also declined, through counsel.
-: Counsel, may I ask one quick question?
This is a standing order, right?
-: No, your Honor.
-: This is just the kind of what we do here in-
-: It's an unwritten, yes.
-: Okay.
-: So, and I see my time is winding down,
so unless there are other questions, thank you.
-: Thank you.
-: Okay, attorney Green.
-: Good morning your Honors.
Assistant Attorney General Julie Green for the first justice
of the Boston Juvenile Court.
There is no basis in the law or the facts
and evidence to vacate the BJC'S longstanding policy
procedure for scheduling motions
and motion hearings in non-emergency cases.
The procedure is well within the discretion
that is expressly conferred by juvenile court Rule 7D.
And the extensive data that the BJC has assembled
and presented to the court shows
that it is not causing pervasive delay
as the petitioner's suspect-
-: [Chief Justice Budd] Don't we need to see the information
on the care and protection case as separate
and apart from the other ones though to know that?
-: It's true, all of the data for all of the motions
and all the different types of proceedings is together in
the 353 that we presented.
-: So how do we know whether what you're saying is true,
that there's no delay overall?
-: Well, we know what the average numbers are
and we can see what the types,
how quickly hearings in general get heard.
I'm sorry I can't tease those apart for you,
but I would say that-
-: [Chief Justice Budd] Are you saying it can't be done?
I'm sorry, you're saying it can't be done
or you don't have this that with you?
-: On this record, I can't tease it apart for you.
It certainly could be done.
What the data does show though is
that at least across all motion hearings,
and there's no reason to believe
that care and protection proceedings
would be any different from other
types of extremely important
child welfare proceedings heard in the juvenile court
that there is no pervasive delay
and that the two examples
that petitioners presented in their papers were
extremely regrettable and should not have happened that way.
But the data showed that they were anomalies
and so I think this court need have no fear that that type
of unfortunate sort of human error is happening regularly.
-: Attorney O'Connor mentioned that there was a meeting,
were you part of that?
-: I was, it was a settlement meeting.
The effort was really to determine
whether is there a better way that this could be done.
And I'd just like to point out
that really conspicuously absent in the petitioner's papers
is any sort of suggestion, well,
why don't you do it this way?
I think the reason, the principle problem
that I think the petitioners are pointing to
is the delay involved in conferring with other counsel
at the sort of step zero of the process.
And I to that I'd say that need
for conferring serves an extremely important governmental
interest, which is the courts-
-: [Justice Wendlandt] Excuse me.
I thought opposing counsel was saying that it's the need
to confer on five dates,
that finding five mutually agreeable dates is
really difficult.
And so a lesser number strategically,
if you are in the know, is better for your client,
why not just tell people that?
-: That is absolutely what people,
let me start this again.
The court does communicate routinely with the BAR.
There are regular bench BAR conferences.
This is certainly something that could be
discussed at a conference.
There's no effort to hide this.
The information about what's required
to obtain a motion hearing can also be,
one can go to the clerk's office and ask how to do it.
-: It seems like the rule followers are being penalized.
-: You know, I think there's a sort of a false premise here.
I am not, we are not sure where the perception originated
that five, that the number is five,
whether it's a requirement or a recommendation.
-: Since is not written, I guess that'd be the issue, right?
-: It's, sure, I appreciate that.
The procedure isn't written down.
That's the common practice across all
of the juvenile court divisions.
Practitioners are aware
and they're aware that if they want to know
they need to ask questions.
-: I cut you off, so please tell me
what you were going to say.
-: So the first justice, I think has never said
that five is required,
or we're not exactly sure where that perception originated.
-: Isn't there five blanks on the form, or...
-: No, there are not five blanks on the form.
We sort of anecdotally off, not in this record, we suspect
that it was a, actually something said by an attorney
to other attorneys.
But in any event, what I'd like to stress is that
I think the data shows
that there's no widespread misunderstanding in the BAR.
What we see in the 353 motions is
that 216 of them requested less than five dates.
So to the extent that there is some confusion
among some segment of the BAR, absolutely I think that it
would behoove the court
and the petitioners to raise the issue at one
of the public bench BAR meetings,
which are held at least quarterly.
If there are no further questions, I will rest on my brief.