SENATE DOCKET, NO. 625        FILED ON: 1/15/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 913

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Sal N. DiDomenico

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to ensure right to counsel in eviction proceedings.

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PETITION OF:

SENATE DOCKET, NO. 625        FILED ON: 1/15/2019

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 913

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 831 OF 2017-2018.]

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act to ensure right to counsel in eviction proceedings.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.  Chapter 239 of the General Laws is hereby amended by inserting after Section 2A the following section:-

Section 2B. In an action under this chapter by a lessor of land or tenements used for residential purposes to recover possession of said land or tenements, the occupant of said land or tenements shall have a right to counsel upon issuance of a notice to quit, or, if no notice to quit is required by law, upon service of a summons and complaint for summary process. The occupant shall be informed of said right to counsel by the lessor by way of a form or document approved by the chief justice of the supreme judicial court, which shall be included with or attached to the notice to quit, or, if no notice to quit is required by law, the summons and complaint for summary process.  If the occupant is not able to retain counsel because the occupant is indigent, counsel shall be appointed pursuant to section 5 of chapter 211D upon the occupant’s request for counsel and a determination that the occupant is indigent. The term “occupant” shall mean any person who inhabits or is entitled to inhabit a dwelling unit by a written or oral lease agreement or deed either express or implied for use and occupancy of said dwelling unit. An individual shall be deemed indigent under this section if the individual is (i) receiving public assistance under: (1) aid to families with dependent children pursuant to chapter 118; (2) the program of emergency aid for elderly and disabled residents of the Commonwealth pursuant to section 1 of chapter 117A; (3) a veterans’ benefits program; (4) Title XVI of the social security act; (5) food stamps; (6) refugee resettlement benefits; or (7) Medicaid, pursuant to 42 U.S.C. section 1396,et seq.; (ii) earning an income, after taxes, that is 200 percent or less of the current poverty guideline established annually by the United States Department of Health and Human Services; or (iii) unable to pay the fees and costs of the covered proceeding in which the occupant is involved or is unable to do so without depriving themselves or their dependents of the necessities of life, including food, shelter and clothing. The committee shall promulgate rules and regulations, standards, and procedures consistent with this section for the determination that an individual is indigent and unable to obtain counsel.

SECTION 2. Chapter 139 of the General Laws is hereby amended by inserting after Section 19 the following section:-

Section 19½. In an action under section 19 of this chapter by a lessor or owner of a building or tenement used for residential purposes to make void the lease or other title under which an occupant holds possession and to recover possession of said building or tenements, the occupant holding possession shall have a right to counsel and shall be informed of said right upon a form approved by the chief justice of the supreme judicial court.  Said form shall be included with or attached to a summons and complaint, or other notice to appear before a court, from the lessor or owner.  If the occupant is not able to retain counsel because the occupant is indigent, counsel shall be appointed pursuant to section 5 of chapter 211D upon the occupant’s request for counsel and a determination that the occupant is indigent. The term “occupant” shall mean any person who inhabits or is entitled to inhabit a dwelling unit by a written or oral lease agreement or deed either express or implied for use and occupancy of said dwelling unit. An individual shall be deemed indigent under this section if the individual is (i) receiving public assistance under: (1) aid to families with dependent children pursuant to chapter 118; (2) the program of emergency aid for elderly and disabled residents of the Commonwealth pursuant to section 1 of chapter 117A; (3) a veterans’ benefits programs; (4) Title XVI of the social security act; (5) food stamps; (6) refugee resettlement benefits; or (7) Medicaid, pursuant to 42 U.S.C. section 1396,et seq.; (ii) earning an income, after taxes, that is 200 percent or less of the current poverty guideline established annually by the United States Department of Health and Human Services; or (iii) unable to pay the fees and costs of the covered proceeding in which the occupant is involved or is unable to do so without depriving themselves or their dependents of the necessities of life, including food, shelter and clothing. The committee shall promulgate rules and regulations, standards, and procedures consistent with this section for the determination that an individual is indigent and unable to obtain counsel.

SECTION 3. Chapter 211D of the General Laws is hereby further amended by inserting after Section 16 the following section:-

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.

SECTION 4. (a) There shall be a public task force to develop an implementation plan to effectuate a right to counsel in eviction proceedings pursuant to Chapter 239 and Chapter 139. The task force shall consist of the chair of the committee for public counsel services or the chair’s designee, the Director of Administration and Operations of the committee for public counsel services, the Deputy Chief Counsel of the Private Counsel Division of the committee for public counsel services, the Chief Justice of the Trial Court or the Chief Justice’s designee, the Chief Justice of the Housing Court or the Chief Justice’s designee, a representative of the Massachusetts Access to Justice Commission, and three representatives from legal aid organizations specializing in housing and eviction cases selected by the Massachusetts Legal Assistance Corporation.

(b) The task force shall provide recommendations to implement and evaluate a statewide program to effectuate the right to counsel provided for in section 1 and section 2 of this Act. The task force shall, at a minimum, investigate the following topics:

(i) recommended rules and regulations to administer a right to counsel in housing and eviction cases, including proper notification to an occupant of his or her right to counsel, procedures to request counsel, investigation and determination of indigency, procedures for the assignment of counsel, and enforcement;

(ii) recruitment of private counsel, legal aid organizations, and law firms performing pro bono services to be assigned as counsel;

(iii) required changes to existing state law and court rules in order to fully implement a right to counsel;

(iv) the cost of implementation and maintenance of a right to counsel in housing and eviction cases;

(v) the collection and sharing of current eviction data among the housing court, the district court, the superior court, and other agencies, departments, and political subdivisions of the Commonwealth, including municipalities; and,

(vi) legal training and the establishment of standards of conduct and competence for appointed counsel in summary process and similar proceedings, which shall include recommendations for housing assistance training to attorneys that help attorneys identify housing counseling resources for individuals involved in eviction proceedings under chapter 239 or section 19 of chapter 139 who could benefit from those resources.

(c) The Task Force’s plan shall be submitted as a report to the General Court’s Joint Committee on Housing not later than one year after the effective date of this act.  The Task Force shall disband upon submission of the report described in this paragraph (c). 

SECTION 5. The committee for public counsel services shall promulgate rules and regulations in order to implement the right to counsel in housing and eviction cases pursuant to this act and consistent with the findings and recommendations of the Task Force’s report, as provided for in section 4, no later than one calendar year from the completion of the report.

SECTION 6. The right to counsel in eviction proceedings as established by section 1 and section 2 of this Act shall take effect and be fully implemented on the second anniversary of the date the Task Force’s report is submitted pursuant to section 4(c) of this Act.

SECTION 7. The provisions of this Act, unless otherwise expressly provided, shall take effect upon passage.