The bill text below has been prepared for filing in the 192nd legislative session. Unlike past bills, we have drafted these with prefatory “Whereas” clauses. These clauses allow us to indicate the need for a solution even to those who may not be familiar with the underlying law or what our wording would accomplish. MassLandlords hereby releases this bill text into the public domain (for this article only, please disregard the copyright notice that automatically appears in connection with our publications).
An Act Establishing a Right to Counsel in Civil Asset Forfeiture Cases
WHEREAS in the period 2017-19 the Commonwealth, through civil asset forfeiture actions under section 47(d) of chapter 94C of the General Laws by the attorney general and district attorneys, seized assets from people who had not been accused of, let alone convicted of, any crime, including more than $20 million in money;
WHEREAS in 24% of cases the amount of money seized was between $2,000 and $4,999, in 25% the amount was less than $2,000, and in one case was $6.20;
WHEREAS section 47(d) of chapter 94C of the General Laws puts the burden on a claimant to prove that the property is not forfeitable;
WHEREAS in most cases the legal fees that an innocent owner would incur in making a claim would exceed the value of the seized property;
WHEREAS in approximately 80 per cent of civil asset forfeiture cases in the period 2017-19, the owner made no claim;
WHEREAS civil asset forfeiture has a disparate impact on communities of color;
WHEREAS the statute allows the prosecuting district attorney, attorney general, and police department involved in the seizure to retain the assets they seize;
WHEREAS the Declaration of Rights provides that “each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to the standing laws,” that “no subject shall be… deprived of his property… or deprived of his life, liberty, or estate, but by the judgment of his peers, or by the law of the land,” and that “every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions.”
WHEREAS the statute, by encouraging State actors to seize money and deterring innocent owners from seeking its return, is an affront to the foregoing provisions of the Declaration of Rights and to the principles of fundamental justice;
WHEREAS it is in the interest of society as a whole that individuals at risk of losing their property or their homes should have the benefit of competent counsel; and
WHEREAS funds that the Commonwealth and its agencies obtain from civil asset forfeiture ought to be expended so as to ensure that claimants in civil asset forfeiture proceedings and litigants in summary process proceedings are afforded adequate legal representation:
NOW THEREFORE BE IT RESOLVED THAT:
Subsection (d) of section 47 of chapter 94C of the General Laws is hereby amended by striking the second, third, and fourth paragraphs and inserting in place thereof the following:-
Upon the filing of a claim to the property by any person other than the commonwealth, the clerk of the court shall determine whether the person is a natural person. Upon a determination that the claimant is a natural person, the chief counsel of the committee for public counsel services shall assign the case to either the public counsel division or the private counsel division.
The final order of the court shall provide that said moneys and the proceeds of any such sale shall be distributed to the Counsel for Indigent Salary Enhancement Trust Fund established under section 35Z of chapter 10 of the General Laws, and shall then be expended without further appropriation to pay (1) counsel assigned or appointed pursuant to this section, and (2) counsel assigned or appointed to represent parties in summary process proceedings.
Section 17. The committee shall establish, supervise and maintain a system for the appointment of counsel for the provision of legal services for indigents subject to summary process or similar proceedings and resulting appeals under chapter 239 and section 19 of chapter 139 as provided by section 2B of chapter 239 and section 19½ of chapter 139. Legal aid organizations that provide representation to indigent individuals and families are eligible for appointment and may be designated as counsel within the meaning of this section.
An Act for Public Ownership of Public Information
WHEREAS the people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent State, as set forth in Article 4 of the Declaration of Rights;
WHEREAS a self-governing, free, and sovereign State depends on the liberty of the press, which in turn depends on access to information;
WHEREAS the Supreme Court of the United States has held that the Government Edicts Doctrine bars legislators from owning the law, in that officials empowered to speak with the force of law cannot be the authors of, and therefore cannot copyright, the works they create in the course of their official duties;
WHEREAS the Legislature cannot own copyright in the works that the Legislature creates;
WHEREAS the Legislature asserts copyright in its works, including copyright in the laws, by way of a notice on the website malegislature.gov that states, “Copyright © 2021 The General Court of the Commonwealth of Massachusetts;”
WHEREAS improper assertion of copyright in public-domain works is a criminal offense under the federal Copyright Act of 1976 as amended.
NOW THEREFORE BE IT RESOLVED THAT:
Chapter 66 of the General Laws is hereby amended by inserting after section 1A the following section:-
Section 1B. The Legislature disclaims, abandons, relinquishes, and waives copyright in the works of the Legislature, including all works created prior to the effective date hereof, and hereby irrevocably transfers and dedicates all such works to the public domain. The Legislature shall not claim copyright in any future works created by or on behalf of the Legislature, and all such works that the Legislature causes to be published shall contain a notice stating that: “The Legislature of the Commonwealth of Massachusetts hereby irrevocably dedicates this work to the public domain, and waives all copyright and associated claims and causes of action with respect to this work.” This section shall be construed liberally for the accomplishment of its purpose, which is to encourage the freedom of speech and of the press.
Section 18 of chapter 66 of the General Laws is hereby amended by striking out the words “this chapter shall not apply to the records of the general court, nor shall” and inserting before the words “be public records” the words “shall not.”
An Act Establishing a Pilot Program for Rent Payment Surety Bonds
WHEREAS a combination of policy choices in Massachusetts, including regressive zoning ordinances and bylaws that discourage multi-family housing, have led to high housing costs and a serious shortage of affordable housing, with a disparate impact on people of color;
WHEREAS more than one-third of Massachusetts households live in rental housing;
WHEREAS the COVID-19 pandemic and the Commonwealth’s response thereto have resulted in significant hardship both to people who live in rental housing and to people who provide rental housing;
WHEREAS housing providers depend on rent in order to pay their bills, including their property taxes;
WHEREAS a significant number of renters have rental arrears in excess of $10,000;
WHEREAS the maximum amount available through RAFT is $10,000; and
WHEREAS a market-based approach, whereby the Commonwealth would stand as surety for rental-payment bonds, could target assistance to those who need it most;
WHEREAS a pilot program could help determine whether the policy is more effective than a direct subsidy:
NOW THEREFORE BE IT RESOLVED THAT:
SECTION 1. The General Laws are hereby amended by inserting after chapter 121G the following chapter:-
RENT PAYMENT SURETY BOND GUARANTEE FUND
Section 1. Definitions. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings.
The term “lessor” means the owner of land or tenements used for residential purposes, including landlords.
The term “lessee” means the lessee of land or tenements used for residential purposes, including tenants.
The term “rent-payment surety bond” means a bond conditioned on the payment of rent or use-and-occupancy payments by a lessee to a lessor.
Section 2. The secretary of housing and economic development shall establish a pilot program to test the viability and efficacy of enabling lessors to purchase rent-payment surety bonds from companies authorized to transact business by the division of insurance, which pilot program shall reflect the geographic, racial, and ethnic diversity of the commonwealth.
Section 3. For the purposes of the pilot program, there is hereby established a fund to be known as the Rent Payment Surety Bond Guarantee Fund, to which shall be credited the proceeds of any bonds or notes of the commonwealth issued for this purpose, and any appropriations authorized by the general court specifically designated to be credited to the fund.
Section 4. The secretary shall instruct the department of housing and community development to administer the fund in order to enable lessors to purchase rent-payment surety bonds from companies authorized to transact business by the division of insurance. The department shall, up to the amount of $10,000,000, guarantee all surety companies against all losses that result from a breach of the terms of any rent-payment surety bonds issued pursuant to this chapter, and provide to lessors upon satisfactory application the full amount of all premiums and other amounts paid for such bonds, subject to the following conditions:
(a) Each applicant for a surety bond shall provide satisfactory evidence of ownership of the premises, that the applicant is not subject to sanctions administered by the federal Office of Foreign Asset Control, that the use of the premises as a residential dwelling is lawful, that the dwelling unit is real and preexisting, and that the lease or rental agreement pertaining to the premises existed prior to the effective date of this act. Satisfactory evidence of a written lease or rental agreement shall include any written lease or tenancy-at-will dated prior to the declaration of surety. Satisfactory evidence of an unwritten agreement shall include copies of voided checks or other proof of repeat payment prior to the declaration or affidavits executed by the parties averring the existence and terms of their agreement.
(b) Each lessor seeking payment from the surety company shall provide evidence that the proximate cause of the lessee’s nonpayment of rent or use and occupancy is (i) the 2019 novel Coronavirus (COVID 19), or (ii) the federal, state, and local governmental responses thereto, including the state of emergency declared by the governor on March 10, 2020, the governor’s orders issued on March 23 (COVID 19 Order No. 13), on March 31 (COVID 19 Order No. 21), and all executive orders and advisories issued in connection with COVID 19.
(c) Each lessor shall demonstrate to the satisfaction of the department that the lessor has not previously sought payment from the surety in connection with the same lessee or premises for the same rental period.
(d) The department shall promulgate emergency regulations establishing the procedure, and provide the necessary forms, by which applicants may apply for surety from authorized surety companies, obtain from the department and convey to surety companies the premium payments, and make claims in the event of nonpayment by lessees.
(e) The department shall review the results and outcomes of the pilot program and shall provide annual reports of the pilot program to the chairpersons of the joint committee on housing.
Section 5. No court having jurisdiction of an action for summary process pursuant to chapter 239 or other form of eviction action, except for cause, shall accept for filing a writ, summons or complaint for possession of a residential dwelling arising out of a lease or rental agreement subject to a surety bond guaranteed pursuant to this chapter, unless the surety company has paid or denied the claim for surety. The department and the department of the trial court shall establish a procedure by which it will be apparent on the face of documents presented for filing whether the dwelling was subject to such bond.
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