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