WEBVTT

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<v ->SJC-12784,</v>

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Department of Revenue Child Support Enforcement,

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v. Joshua Grullon

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<v ->Miss Richardson, good morning.</v>

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<v ->Morning, may it please the Court.</v>

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My name is Anna Richardson.

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I'm here from Veterans Legal Services

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on behalf of the appellant Joshua Grullon.

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I want to recognize our senior staff attorney Eve Elliot,

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who's second chairing the case today,

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as well as our co-counsel from Skadden Catherine Fisher

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and Caroline Trustee on the briefs.

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The case before you today concerns the critical issue

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of what process an indigent person is due

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before we use the power of the court

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and the Commonwealth to deprive them

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of their physical liberty in a civil contempt action.

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As Mr. Grullon's case illustrate,

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the appointment of counsel for an indigent defendant

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is essential to prevent wrongful incarceration

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of persons both too poor to comply with the court's orders

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and unable to advocate for themselves adequately.

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This case makes clear

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that substitute procedural safeguards are not enough

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to protect an indigent defendant whose freedom is at stake.

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<v ->Is that in every DOR,</v>

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whenever DOR brings a contempt action,

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do they always request the alternative of jail time?

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<v ->You would have to ask the department</v>

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as to their traditional procedures with regard to jail time.

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In each contempt, incarceration

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is a theoretical possibility.

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<v ->Right, that's what I'm trying to understand.</v>

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So, is there an all,

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is it an all or nothing proposition?

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Could we say that you get counsel

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if DOR is seeking, requesting

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the option of incarceration.

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Say it's the first step in the process.

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They're coming in, they're holding him in contempt,

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but they're not seeking jail time.

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Do we need a lawyer in that case?

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<v ->If jail time is not being sought,</v>

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the only circumstance in that case where potentially

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a lawyer might be required as if at some point

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in the proceeding,

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the judge begins to think sua sponte

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that they think incarceration might be appropriate.

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<v ->There's a practical consideration here because,</v>

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CPCS is supposed to set up a bullpen,

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so I mean, in this case, in many ways,

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your client talked himself into contempt, right?

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So it was going okay,

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until he said something he shouldn't have said,

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and recognized that and the judge says,

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"No, now you gonna go into jail".

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We can get into whether that should have happened or not,

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but showing should have happened,

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I'm so sure you'll discuss that.

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But practically speaking,

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as Justice Kafker's alluding to,

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the judge should basically in your world,

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stop the hearing and say, "I'm thinking about sending

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"you to jail".

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Now we're gonna appoint counsel?

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<v ->That's correct.</v>

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So we're not seeking the counsel be appointed

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in all contempt matters.

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As this Court has distinguished in cases like patent,

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there is a difference between when incarceration

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is a theoretical possibility

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versus when it's a palpable potential result

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of the proceeding.

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So what we're asking this court to do is to hold

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that the defendant may not be sentenced to jail

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in a civil contempt matter unless counsel

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is appointed at a meaningful time

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and in a meaningful manner.

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Here, with that--

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<v ->Just tryna understand how that's gonna work</v>

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in the real world.

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But, 'cause there's always a sort of a possibility

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that things are gonna get messy.

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But, so you're not saying that a counsel needs

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to be appointed whenever DOR brings a contempt action?

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<v Anna>Correct, um, Well--</v>

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<v ->But I'm trying to stand, what's the theory?</v>

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How do we define this theoretical possibility?

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Is that a request for incarceration?

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Or is it as soon as the judge decides like this judge,

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he's aggravated and he's thinking of putting you in jail,

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then you stop the proceedings and call for counsel?

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I'm just trying to understand practically

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'cause we gotta get some guidance out there,

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'cause there're I guess 60, 000 of these,

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you know, there's a huge number of them going on.

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<v ->So what we're suggesting here is that when</v>

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the other party is requesting incarceration,

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the trial court judge would need to determine if that

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is reasonably a remedy that it wants to retain

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the discretion to order in that case--

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<v ->When the other party,</v>

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I take it when the other party is DOR

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not when the other party is an pro se.

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If we have to pro ses, aren't we running into this asymmetry

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the US Supreme Court talked about?

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Is it only when DOR request it

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or is it when anyone,

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whenever anyone requests incarceration?

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<v ->It's when the court determines that it wants to retain</v>

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the discretion to order incarceration as a remedy.

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So a pro se party could come in and say,

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"I want incarceration even though the Father

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has shown up and paid 90% of the arrearage that day

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and the judge may know, immediately,

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that's not something they want to entertain.

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Conversely, there could be instances,

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they're rare where the party is not requesting it,

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DOR is not requesting it,

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but the judge does determine through the course of

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the proceeding at some point

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they're contemplating ordering it.

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<v ->Is that only gonna happen when there's a determination</v>

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by the judge that the person did this before

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the judge has the ability to pay but chooses not to?

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<v ->Yes, ability to pay is a critical inquiry--</v>

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<v ->Yeah, it's an inquiry though</v>

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that can be made ahead of time

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is what you are suggesting,

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as I understand it, in the brief.

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<v ->Yes, and I would submit that if the department is doing</v>

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its due diligence in inquiring into ability

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to pay before bringing these contempt actions

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as required by DOR's own procedures,

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and the federal regulations,

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the instance in which you have an indigent defendant

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that the Commonwealth would have to pay for counsel for

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that also is found to have the ability to pay

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is going to be relatively rare

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because by definition,
<v ->Yeah.</v>

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<v ->DOR should regularly be bringing a contempt</v>

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in those instances when that person's income is so limited

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to begin with.

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<v ->Will that be the only issue really, that's a play?</v>

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I mean, there are not other issues and playing

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in terms of contempt that an indigent person

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would be facing.

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Contempt for having violated what other kinds of orders

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are there other than payment orders?

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<v ->Certainly, and what we're arguing for is that</v>

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the issue here is that we are depriving a person

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of their physical liberty.

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We are by definition, taking something away from them

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that we have no capacity to give back.

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So we need to be certain--

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<v ->But it's a way of saying you have the ability to do this,</v>

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you're choosing not to, you're in defiance of the court.

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Right?

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<v ->Yes, and in the case where the defendant truly holds</v>

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the keys to their own release

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and is able to comply,

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then these additional procedural safeguards

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are not necessarily warranted.

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But as here where you have a defendant

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who would not have been allowed to make the comments

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to the court that he did if he had had counsel present,

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he would have had someone to effectively advocate for him,

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he would not have been incarcerated on this record,

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had he had counsel because the case would (mumbles)

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and presented radically different.

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<v ->That's what makes me nervous,</v>

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'cause that case, no one was considering incarceration.

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I guess DOR requested incarceration in that

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in his case, right?

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As a possibility.

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<v Anna>That's correct.</v>

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<v ->Okay, so there he should have been appointed counsel,</v>

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in your view, because they've requested it?

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<v ->Or the judge should have indicated it on the record,</v>

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"I'm not appointing counsel,

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"because I am not entertaining that remedy at this time".

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So, you know, again,

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we're not proposing every single contempt action,

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but that where the court is going to order incarceration

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that can only happen if the defendant's been appointed

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counsel at a meaningful time and in a meaningful manner.

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<v Judge>Thank you.</v>

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<v ->What you're saying is it wouldn't be meaningful here</v>

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because he had already started to talk

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and get himself into trouble.

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<v ->That happened after DOR had requested incarceration.</v>

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So at the very outset of the hearing,

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when that request was made,

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the judge would need to determine if--

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<v ->That's the only time it would be meaningful.</v>

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<v ->Yeah, if I can step back,</v>

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put aside the issue of counsel for a moment,

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let's just focus purely on what is required under Turner.

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The world as it should be under Turner,

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and for that matter under Birchall,

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would be that when there is the possibility of somebody

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being held in civil contempt

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and being placed in custody as a result,

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there would need to be notice given

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to the defendant,

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that ability to pay matters a great deal

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and they would need to be a inquiry into ability to pay,

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correct?

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<v Anna>Correct.</v>

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<v ->Do we have any by the way reason to believe</v>

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that that, in fact, is happening in the DOR session

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of our Probate and Family Court?

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<v ->As DOR noted in their brief,</v>

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they send a stuffer I believe with the complaints.

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They can speak better--

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<v Judge>What's a stuffer?</v>

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<v ->A piece of paper that is sent out with the complaints.</v>

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It's, you know, again, they can speak better

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to their own procedures than I can.

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<v ->Is that supplement number seven,</v>

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important notice regarding contempt?

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<v ->I believe so yes.</v>

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<v ->That's a stuffer?</v>

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<v ->So you would pay child support as critical issue</v>

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in determining whether or not you'll be found in contempt?

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That's the record, it's page seven.

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<v ->That's my understanding.</v>

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I have...

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I don't know if Mr. Grullon was served at in this case.

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It's certainly not something that's delivered with

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the summons or the court complaint which he was served with

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by the sheriff.

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I would also note another requirement of Turner

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is expressed findings to as ability to pay.

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And--

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<v ->Which would require there to be some hearing,</v>

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or some evidentiary.

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<v ->Yes, and the Birchall standard articulates</v>

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it must be by clear and convincing evidence.

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If I can draw the Court's attention to the order

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in the Jimenez matter on addendum page 91, 92.

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You can see there's as recently as July of 2017,

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the form order in these cases did not include

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an express finding as to ability to pay.

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Which causes, and that form order was in place

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in some of the other cases that we also referenced

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in our brief from the lower court

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where we had indigent veterans

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who were incarcerated without counsel

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and without those findings being made.

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<v ->So going back to Justice Kafker's earlier question</v>

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in terms of the practical consequences today,

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where there is no right to counsel,

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and there is a DOR request

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to say I wish this particular

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person to be held in civil contempt

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and that the person be jailed for failure to pay,

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does the judge then give the defendant

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the opportunity to sort of

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establish the inability to pay?

261
00:11:09.790 --> 00:11:12.150
I mean, there would need to be some hearing on that.

262
00:11:12.150 --> 00:11:14.400
Is there some, is there a continuance given

263
00:11:14.400 --> 00:11:15.730
in order for that to occur?

264
00:11:15.730 --> 00:11:18.947
Or do they just ask the person right then and there,

265
00:11:18.947 --> 00:11:21.550
"Tell me about your ability to pay".

266
00:11:21.550 --> 00:11:24.150
<v ->Well, the burden is on the defendant to show</v>

267
00:11:24.150 --> 00:11:26.460
at least some type of prima facie evidence

268
00:11:26.460 --> 00:11:27.830
of inability to comply

269
00:11:27.830 --> 00:11:31.630
because the prior order was put in place, presumably,

270
00:11:31.630 --> 00:11:33.970
as a well founded order.

271
00:11:33.970 --> 00:11:35.950
But I would submit that, you know,

272
00:11:35.950 --> 00:11:37.410
as the record reflects here,

273
00:11:37.410 --> 00:11:39.240
it's important the counsel be appointed

274
00:11:39.240 --> 00:11:42.470
before a defendant potentially prejudices themselves,

275
00:11:42.470 --> 00:11:45.290
as to the final outcome of the matter.

276
00:11:45.290 --> 00:11:49.130
There are 33 states that recognize some form of right

277
00:11:49.130 --> 00:11:52.450
to counsel in civil contempt in family court,

278
00:11:52.450 --> 00:11:56.530
and each of them has taken varying approaches to this.

279
00:11:56.530 --> 00:11:58.760
So for example, in New Jersey

280
00:11:58.760 --> 00:12:00.320
in the matter of Pasco v. counsel,

281
00:12:00.320 --> 00:12:02.250
the court found a right to counsel

282
00:12:02.250 --> 00:12:04.450
and then referred the matter to a committee,

283
00:12:05.770 --> 00:12:09.740
to determine how best to develop rules for implementation

284
00:12:09.740 --> 00:12:11.350
of that right.

285
00:12:11.350 --> 00:12:12.980
In Connecticut in Texas,

286
00:12:12.980 --> 00:12:16.650
the courts have held that counsel is indicated when

287
00:12:16.650 --> 00:12:19.700
the court determines that incarceration may be appropriate

288
00:12:19.700 --> 00:12:21.000
as a remedy.

289
00:12:21.000 --> 00:12:24.770
In Ohio, defendants must apply for Public Defender Services

290
00:12:24.770 --> 00:12:26.030
if they believe they need them

291
00:12:26.030 --> 00:12:28.310
when they receive the contempt summons.

292
00:12:28.310 --> 00:12:31.213
And in other contexts, such as Maryland,

293
00:12:32.058 --> 00:12:35.880
where incarceration may result, counsel is required.

294
00:12:35.880 --> 00:12:39.110
So there's a range of options that this court could look to

295
00:12:39.110 --> 00:12:42.010
in terms of the implementation of a right,

296
00:12:42.010 --> 00:12:44.350
but I would submit that that's a distinct inquiry

297
00:12:44.350 --> 00:12:46.233
from whether the right itself exists.

298
00:12:47.600 --> 00:12:49.717
<v ->Pragmatically going to the question Justice Gaziano,</v>

299
00:12:49.717 --> 00:12:52.060
and Justice Kafker asked,

300
00:12:52.060 --> 00:12:53.417
it would mean that you'd have to say,

301
00:12:53.417 --> 00:12:56.867
"We will, I will appoint counsel in your world,

302
00:12:56.867 --> 00:12:59.397
"I will appoint counsel for you Mr. Grullon

303
00:12:59.397 --> 00:13:04.397
"and we will have it heard on a new DOR Day?

304
00:13:04.720 --> 00:13:05.553
<v ->That's correct.</v>

305
00:13:05.553 --> 00:13:07.750
And I think this case illustrates how helpful

306
00:13:07.750 --> 00:13:12.450
that cooling off period could be in terms of the environment

307
00:13:12.450 --> 00:13:15.060
of the Probate and Family Court can be quite frustrating.

308
00:13:15.060 --> 00:13:17.580
DOR Day can be quite hectic,

309
00:13:17.580 --> 00:13:19.060
you know, had that happened

310
00:13:19.060 --> 00:13:20.860
and had everyone had to come back.

311
00:13:20.860 --> 00:13:23.010
And it could be very short return data.

312
00:13:23.010 --> 00:13:26.910
It's not something that requires months and months of delay.

313
00:13:26.910 --> 00:13:29.020
But if everyone had had to come back

314
00:13:29.020 --> 00:13:32.240
with Mr. Grullon having counsel to explain his comments

315
00:13:32.240 --> 00:13:33.140
to the court,

316
00:13:33.140 --> 00:13:35.520
I don't believe that he would have been incarcerated.

317
00:13:35.520 --> 00:13:40.240
<v ->Miss Richardson, can you tell me why with your analysis,</v>

318
00:13:40.240 --> 00:13:42.570
an individual wouldn't be entitled to counsel

319
00:13:42.570 --> 00:13:46.170
in the district court and supplementary process session

320
00:13:46.170 --> 00:13:49.530
when there's been a judgment that has entered

321
00:13:49.530 --> 00:13:52.280
and there's a determination of whether or not somebody

322
00:13:52.280 --> 00:13:53.590
has the ability to pay

323
00:13:53.590 --> 00:13:57.430
and if they don't, that they face incarceration?

324
00:13:57.430 --> 00:14:02.310
What's the analysis as to why that individual

325
00:14:02.310 --> 00:14:05.170
in the district court supplementary process session wouldn't

326
00:14:05.170 --> 00:14:07.010
be entitled to counsel?

327
00:14:07.010 --> 00:14:09.360
<v ->Well, I'm not sure that they wouldn't be.</v>

328
00:14:09.360 --> 00:14:11.300
You know, our our critical inquiry here, again,

329
00:14:11.300 --> 00:14:13.880
is the deprivation of that liberty interest.

330
00:14:13.880 --> 00:14:17.700
And we believe that under the Massachusetts Constitution,

331
00:14:17.700 --> 00:14:20.430
where that fundamental right is at stake

332
00:14:20.430 --> 00:14:21.913
counsel should be appointed.

333
00:14:23.290 --> 00:14:25.860
That is not the case before you today.

334
00:14:25.860 --> 00:14:27.490
There could certainly be nuances

335
00:14:27.490 --> 00:14:29.510
to the supplementary process session

336
00:14:29.510 --> 00:14:30.810
that I'm not aware of where

337
00:14:30.810 --> 00:14:33.733
other substitute procedural safeguards could be adequate.

338
00:14:34.810 --> 00:14:37.480
You know, apart from that we have the Federal Constitution

339
00:14:37.480 --> 00:14:39.790
and Turner also setting a floor not a ceiling

340
00:14:39.790 --> 00:14:41.030
on these cases,

341
00:14:41.030 --> 00:14:44.180
and where, you know, opposite counsel,

342
00:14:44.180 --> 00:14:45.610
as we have in this case,

343
00:14:45.610 --> 00:14:48.160
I think that that shifts the analysis under

344
00:14:48.160 --> 00:14:50.350
the federal standard as well.

345
00:14:50.350 --> 00:14:54.620
<v ->Just to be clear we're dealing here with a DOR attorney</v>

346
00:14:54.620 --> 00:14:55.920
who was seeking it,

347
00:14:55.920 --> 00:14:58.320
are you saying that we should extend this right

348
00:14:58.320 --> 00:15:00.485
to a situation where DOR is not involved

349
00:15:00.485 --> 00:15:03.220
and there's simply one spouse,

350
00:15:03.220 --> 00:15:06.603
who is herself, usually herself unrepresented,

351
00:15:07.620 --> 00:15:10.540
asking for contempt for the husband?

352
00:15:10.540 --> 00:15:13.800
<v ->If the other spouse is asking for jail time,</v>

353
00:15:13.800 --> 00:15:17.030
and the court is seriously considering ordering jail time,

354
00:15:17.030 --> 00:15:18.900
then yes, yes, we would.

355
00:15:18.900 --> 00:15:21.960
It's the, again the deprivation of that person's freedom by

356
00:15:21.960 --> 00:15:24.350
the state that we believe triggers the right

357
00:15:24.350 --> 00:15:25.533
in these instances.

358
00:15:26.940 --> 00:15:31.090
<v ->But isn't almost every one of these contempt actions</v>

359
00:15:31.090 --> 00:15:34.020
that somebody's seeking, yeah...

360
00:15:35.070 --> 00:15:36.190
All the pro bono ones,

361
00:15:36.190 --> 00:15:38.652
they're often seeking jail time, aren't they?

362
00:15:38.652 --> 00:15:40.561
I'm just trying to understand,

363
00:15:40.561 --> 00:15:42.330
again, the limits of this.

364
00:15:42.330 --> 00:15:45.607
<v ->I'm not sure that I follow as to the pro bono component--</v>

365
00:15:46.470 --> 00:15:47.980
<v Judge>Self represented.</v>

366
00:15:47.980 --> 00:15:52.360
<v ->The, jail time should only be sought when the defendant</v>

367
00:15:52.360 --> 00:15:54.370
has the ability to comply with the order

368
00:15:54.370 --> 00:15:55.970
and is willfully choosing to do so.

369
00:15:55.970 --> 00:15:58.080
So someone who has...

370
00:15:58.080 --> 00:16:00.030
There is evidence that this person has income

371
00:16:00.030 --> 00:16:01.910
or assets that they are not applying

372
00:16:01.910 --> 00:16:04.040
to fulfill this obligation.

373
00:16:04.040 --> 00:16:06.530
<v ->Once DOR is involved,</v>

374
00:16:06.530 --> 00:16:08.020
and we're assuming a certain level

375
00:16:08.020 --> 00:16:10.410
of professional investigation,

376
00:16:10.410 --> 00:16:12.870
when they're requesting jail time,

377
00:16:12.870 --> 00:16:15.270
you've got a lawyer and a request for jail time

378
00:16:15.270 --> 00:16:19.030
when we've got self represented on both sides,

379
00:16:19.030 --> 00:16:21.387
you know, obviously they think that you can pay

380
00:16:21.387 --> 00:16:23.060
and they're angry.

381
00:16:23.060 --> 00:16:25.090
I'm just, are we really,

382
00:16:25.090 --> 00:16:29.890
every time a self represented person seeks jail time,

383
00:16:29.890 --> 00:16:30.960
you have to appoint it

384
00:16:30.960 --> 00:16:34.040
or is the judge gonna make it a determination

385
00:16:34.040 --> 00:16:35.093
in the hearing?

386
00:16:36.050 --> 00:16:37.970
<v ->I would submit the judge is making a determination</v>

387
00:16:37.970 --> 00:16:40.314
in that hearing as to whether they feel jail time

388
00:16:40.314 --> 00:16:45.314
is something they want to retain the discretion to impose.

389
00:16:45.360 --> 00:16:49.760
And most often, the court has some idea throughout

390
00:16:49.760 --> 00:16:51.120
the course of the proceedings,

391
00:16:51.120 --> 00:16:52.777
that's something I'm considering or not

392
00:16:52.777 --> 00:16:55.610
and that could be based on your prior history

393
00:16:55.610 --> 00:16:57.230
in the Probate and Family Court,

394
00:16:57.230 --> 00:16:59.640
is there, you know, like the history of this person

395
00:16:59.640 --> 00:17:03.230
having assets and not using them to fulfill this obligation?

396
00:17:03.230 --> 00:17:05.370
Is there evidence on the financial statements

397
00:17:05.370 --> 00:17:07.610
that there is ability to pay?

398
00:17:07.610 --> 00:17:11.460
Has that due diligence been conducted prior to the hearing?

399
00:17:11.460 --> 00:17:13.900
If DOR is involved, that there is evidence

400
00:17:13.900 --> 00:17:16.020
that this person has resources and again,

401
00:17:16.020 --> 00:17:19.180
is willfully choosing not to use them for this purpose.

402
00:17:19.180 --> 00:17:21.290
<v ->Who willfully chooses not to work.</v>

403
00:17:21.290 --> 00:17:22.123
<v ->What's that?</v>

404
00:17:22.123 --> 00:17:23.680
<v ->Willfully chooses not to work.</v>

405
00:17:23.680 --> 00:17:25.830
<v ->Well, and you're correct,</v>

406
00:17:25.830 --> 00:17:27.610
the court can impute or attribute income

407
00:17:27.610 --> 00:17:28.900
in certain circumstances,

408
00:17:28.900 --> 00:17:30.870
that can be quite a complicated inquiry

409
00:17:30.870 --> 00:17:33.210
into someone's earning capacity,

410
00:17:33.210 --> 00:17:37.370
and one where, you know, counsel may be necessary to assist

411
00:17:37.370 --> 00:17:39.210
the person in presenting why it is

412
00:17:39.210 --> 00:17:41.580
that they're not able to work.

413
00:17:41.580 --> 00:17:44.210
I know in our context with veterans,

414
00:17:44.210 --> 00:17:47.760
the average wait time on VA benefits appeals is five years.

415
00:17:47.760 --> 00:17:51.380
So we may have a disabled individual who is trying to access

416
00:17:51.380 --> 00:17:53.160
the benefit, not able to do so

417
00:17:53.160 --> 00:17:55.080
and simultaneously unable to work

418
00:17:55.080 --> 00:17:57.950
and has a great deal of difficulty presenting that evidence

419
00:17:57.950 --> 00:17:59.460
to the court.

420
00:17:59.460 --> 00:18:00.293
<v Judge>All right, thank you.</v>

421
00:18:00.293 --> 00:18:01.900
<v ->Thank you.</v>

422
00:18:01.900 --> 00:18:02.733
<v ->Mr. Kravitz.</v>

423
00:18:04.470 --> 00:18:07.137
(clears throat)

424
00:18:08.290 --> 00:18:09.620
<v ->Thank you, Mr. Chief Justice,</v>

425
00:18:09.620 --> 00:18:11.650
and may it please the Court.

426
00:18:11.650 --> 00:18:16.000
The, as the Supreme Court held in Turner versus Rogers,

427
00:18:16.000 --> 00:18:19.820
the fundamental and critical question in this case,

428
00:18:19.820 --> 00:18:21.360
in cases of this kind,

429
00:18:21.360 --> 00:18:25.500
is whether there has been a fundamentally fair determination

430
00:18:25.500 --> 00:18:27.820
of the key due process question,

431
00:18:27.820 --> 00:18:31.410
that is the ability to pay, in cases like this.

432
00:18:31.410 --> 00:18:35.853
And on the record that we have in front of us in this case,

433
00:18:37.030 --> 00:18:42.030
it appears to us that for three different sets of reasons

434
00:18:42.810 --> 00:18:47.050
that we cannot be confident that that occurred in this case,

435
00:18:47.050 --> 00:18:49.640
and therefore, unfortunately,

436
00:18:49.640 --> 00:18:52.440
we agree with, I agree with my colleagues,

437
00:18:52.440 --> 00:18:56.010
that the contempt judgment in this case should be vacated.

438
00:18:56.010 --> 00:18:58.670
So, and as I said, there are three sets of reasons

439
00:18:58.670 --> 00:19:00.590
why we think that so.

440
00:19:00.590 --> 00:19:02.330
The first has to do with the safeguards

441
00:19:02.330 --> 00:19:03.860
that are laid out in Turners.

442
00:19:03.860 --> 00:19:07.140
As you referenced earlier, there are four safeguards.

443
00:19:07.140 --> 00:19:10.550
We cannot, we are not confident about two of them

444
00:19:10.550 --> 00:19:11.383
in this case.

445
00:19:11.383 --> 00:19:14.140
There is the requirement as was referenced earlier,

446
00:19:14.140 --> 00:19:17.390
that notice, clear notice must be given

447
00:19:17.390 --> 00:19:22.390
that the ability to pay is the essential issue in the case.

448
00:19:22.520 --> 00:19:27.520
And it is not apparent from the record whether Mr. Grullon

449
00:19:27.560 --> 00:19:30.660
was so advised when the complaint was served

450
00:19:30.660 --> 00:19:31.780
or at another time.

451
00:19:31.780 --> 00:19:32.630
And perhaps--

452
00:19:32.630 --> 00:19:33.580
<v ->We're not yet.</v>

453
00:19:33.580 --> 00:19:37.970
So this supplementary appendix number seven,

454
00:19:37.970 --> 00:19:40.630
that we're not sure whether that was sent to him?

455
00:19:40.630 --> 00:19:43.410
<v ->We cannot tell from the record, that's correct,</v>

456
00:19:43.410 --> 00:19:46.390
but that is the paper that we're referring to.

457
00:19:46.390 --> 00:19:47.223
<v Judge>Yeah, mm-hmm.</v>

458
00:19:47.223 --> 00:19:48.950
<v ->And then the second issue perhaps</v>

459
00:19:48.950 --> 00:19:50.390
a more important one even

460
00:19:50.390 --> 00:19:54.210
is that Turner also references express findings

461
00:19:54.210 --> 00:19:55.480
by the trial court,

462
00:19:55.480 --> 00:19:58.960
that there is an ability to pay the order

463
00:19:58.960 --> 00:20:00.410
and under Birchall of course,

464
00:20:00.410 --> 00:20:03.370
it must be by clear and convincing evidence in Massachusetts

465
00:20:03.370 --> 00:20:06.220
and again, from the record that we have,

466
00:20:06.220 --> 00:20:08.020
there was a form,

467
00:20:08.020 --> 00:20:11.000
in and the record appendix of page 31.

468
00:20:11.000 --> 00:20:13.980
It's a little bit difficult to tell whether the box

469
00:20:13.980 --> 00:20:16.630
that indicates that an ability to pay finding was made

470
00:20:16.630 --> 00:20:17.593
has been checked.

471
00:20:18.480 --> 00:20:21.410
And there's nothing in the transcript of the hearing

472
00:20:21.410 --> 00:20:24.260
that indicates findings made on the record

473
00:20:24.260 --> 00:20:26.280
that there was an ability to pay,

474
00:20:26.280 --> 00:20:28.170
certainly not that there was an ability to pay the

475
00:20:28.170 --> 00:20:30.926
specific purge amount to $500.

476
00:20:30.926 --> 00:20:33.290
So that's the first set of issues.

477
00:20:33.290 --> 00:20:37.190
The second set of issues here, is that,

478
00:20:37.190 --> 00:20:38.660
as was referenced earlier,

479
00:20:38.660 --> 00:20:42.620
federal regulations and DOR's own policy require

480
00:20:42.620 --> 00:20:47.170
that these cases should be screened by DOR staff

481
00:20:47.170 --> 00:20:49.670
before DOR determines to participate,

482
00:20:49.670 --> 00:20:51.750
to serve the complaint,

483
00:20:51.750 --> 00:20:54.770
to appear and then to advocate for contempt

484
00:20:54.770 --> 00:20:57.900
and for perhaps a particular conditions of contempt.

485
00:20:57.900 --> 00:21:00.310
Again, it is not apparent from the record

486
00:21:00.310 --> 00:21:01.890
that that occurred in this case,

487
00:21:01.890 --> 00:21:06.200
and so that's the second set of issues.

488
00:21:06.200 --> 00:21:07.090
And then the third--

489
00:21:07.090 --> 00:21:08.610
<v ->I'm confused.</v>

490
00:21:08.610 --> 00:21:13.080
How could they have been hired if they hadn't screened it?

491
00:21:13.080 --> 00:21:15.980
How could they appear in court if they hadn't screened it?

492
00:21:17.470 --> 00:21:21.200
<v ->My understanding of the way this works</v>

493
00:21:21.200 --> 00:21:24.830
and I'm sort of outside the record a little bit here,

494
00:21:24.830 --> 00:21:28.640
is that this complaint was filed directly at the court.

495
00:21:28.640 --> 00:21:30.200
It was not filed with,

496
00:21:30.200 --> 00:21:33.270
it was not sent to DOR , which is another way you can do it.

497
00:21:33.270 --> 00:21:34.713
It was filed with the court.

498
00:21:35.830 --> 00:21:38.270
Somehow something happened.

499
00:21:38.270 --> 00:21:40.540
It sort of bypassed the screening process

500
00:21:40.540 --> 00:21:45.540
and went directly to the office that serves the complaints.

501
00:21:45.785 --> 00:21:49.280
And then the case was scheduled for the DOR session.

502
00:21:49.280 --> 00:21:51.820
And so then the DOR Attorney was present

503
00:21:51.820 --> 00:21:56.810
and had the information that is reflected in the record.

504
00:21:56.810 --> 00:21:59.497
So that's sort of what we know as to what happened

505
00:21:59.497 --> 00:22:02.150
and so again, that's why we're not confident

506
00:22:02.150 --> 00:22:05.170
that DOR's proper role was exercised here.

507
00:22:05.170 --> 00:22:09.150
And then the third issue is as was mentioned earlier,

508
00:22:09.150 --> 00:22:11.940
the probate judge in this case appears

509
00:22:11.940 --> 00:22:16.020
to have allowed her perception of the "poor attitude"

510
00:22:16.020 --> 00:22:17.710
of Mr. Grullon,

511
00:22:17.710 --> 00:22:20.580
to have influenced her decision to incarcerate.

512
00:22:20.580 --> 00:22:22.210
We agree that that was error.

513
00:22:22.210 --> 00:22:23.660
And so sorry for those--

514
00:22:23.660 --> 00:22:25.680
<v ->That doesn't happen too frequently,</v>

515
00:22:25.680 --> 00:22:28.370
but DOR is a,

516
00:22:28.370 --> 00:22:30.660
DOR Day is a very stressful day.

517
00:22:30.660 --> 00:22:35.660
And it seems like this was more, you know, punishment

518
00:22:36.090 --> 00:22:38.370
for a comment that he made about

519
00:22:39.870 --> 00:22:43.810
the mother's ability to function okay, should be okay,

520
00:22:43.810 --> 00:22:46.130
whatever the comment might be.

521
00:22:46.130 --> 00:22:50.670
Isn't this case the quintessential example of why,

522
00:22:50.670 --> 00:22:53.610
in at least limited circumstances

523
00:22:53.610 --> 00:22:55.653
that counsel should be available?

524
00:22:56.940 --> 00:22:59.533
<v ->Well so to speak to that broader issue,</v>

525
00:23:00.750 --> 00:23:03.840
we don't think it's necessary as to have a blanket rule

526
00:23:03.840 --> 00:23:04.673
in these cases.

527
00:23:04.673 --> 00:23:06.850
And, of course, this is laid out in the brief but,

528
00:23:06.850 --> 00:23:09.620
we don't think it's necessary that there's a blanket rule

529
00:23:09.620 --> 00:23:11.810
that in all of these cases,

530
00:23:11.810 --> 00:23:16.610
or in some sort of globally defined subset of these cases

531
00:23:16.610 --> 00:23:18.260
that counsel be present.

532
00:23:18.260 --> 00:23:20.700
We agree there were multiple errors

533
00:23:20.700 --> 00:23:22.220
that occurred in this case,

534
00:23:22.220 --> 00:23:25.920
perhaps the presence of counsel might have prevented them.

535
00:23:25.920 --> 00:23:28.993
But we hope and expect that this is a rare case,

536
00:23:28.993 --> 00:23:32.110
this sort of a perfect storm of factors that happened here.

537
00:23:32.110 --> 00:23:35.260
And as Mathews v. Eldridge itself makes clear,

538
00:23:35.260 --> 00:23:38.000
due process rules of this sort,

539
00:23:38.000 --> 00:23:41.580
are supposed to come from the generality of cases,

540
00:23:41.580 --> 00:23:43.830
not from the particular rare exception

541
00:23:43.830 --> 00:23:45.480
where essentially everything goes wrong.

542
00:23:45.480 --> 00:23:47.650
<v ->You tell me what it was, that should have happened here</v>

543
00:23:47.650 --> 00:23:48.650
that didn't happen here.

544
00:23:48.650 --> 00:23:50.320
What should have happened?

545
00:23:50.320 --> 00:23:52.920
Once this is underway, what should have happened?

546
00:23:52.920 --> 00:23:54.320
<v ->Once the hearing was underway?</v>

547
00:23:54.320 --> 00:23:55.250
<v Judge>What should have happened?</v>

548
00:23:55.250 --> 00:23:56.830
<v ->So Well, what should have happened</v>

549
00:23:56.830 --> 00:23:58.370
is there should have been an inquiry

550
00:23:58.370 --> 00:24:03.370
at the hearing into Mr. Greon's ability to pay either

551
00:24:03.770 --> 00:24:08.020
the full amount or some modification of child support.

552
00:24:08.020 --> 00:24:09.460
<v ->Right, and how could he do that?</v>

553
00:24:09.460 --> 00:24:13.630
How could he do that without counsel?

554
00:24:13.630 --> 00:24:17.120
<v ->Well, so the question, this Court has considered</v>

555
00:24:17.120 --> 00:24:19.410
the issue of defendant's ability to pay

556
00:24:19.410 --> 00:24:22.030
on multiple occasions in a slightly different context,

557
00:24:22.030 --> 00:24:24.330
which is the determination of indigency.

558
00:24:24.330 --> 00:24:27.190
But as the Supreme Court has recognized

559
00:24:27.190 --> 00:24:29.330
in Turner versus Rogers,

560
00:24:29.330 --> 00:24:32.370
that is a closely related inquiry to the question here.

561
00:24:32.370 --> 00:24:34.380
It's ability to pay for counsel versus ability

562
00:24:34.380 --> 00:24:35.730
to pay child support.

563
00:24:35.730 --> 00:24:37.880
But in both situations,

564
00:24:37.880 --> 00:24:41.190
all of the information that goes into that,

565
00:24:41.190 --> 00:24:42.810
at least on the input side,

566
00:24:42.810 --> 00:24:44.390
is in the control of the defendant.

567
00:24:44.390 --> 00:24:46.870
The defendant knows what his income is,

568
00:24:46.870 --> 00:24:49.760
what his assets are, what his expenses are, and so forth.

569
00:24:49.760 --> 00:24:52.925
And there's a form, a standard sort of income and asset

570
00:24:52.925 --> 00:24:55.120
and expense form,

571
00:24:55.120 --> 00:24:57.570
that is in volume two of the appendix.

572
00:24:57.570 --> 00:25:00.490
<v ->Has the Judge already determined that he is indigent?</v>

573
00:25:00.490 --> 00:25:03.300
<v ->There was no determination either way in this case,</v>

574
00:25:03.300 --> 00:25:05.700
of indigency, 'cause there was no request for indigency

575
00:25:05.700 --> 00:25:08.160
and there was no request for counsel prior

576
00:25:08.160 --> 00:25:09.693
to the hearing in this case.

577
00:25:10.953 --> 00:25:13.350
<v ->Doesn't that sort of prove the point</v>

578
00:25:13.350 --> 00:25:15.570
that counsel would be very beneficial

579
00:25:16.560 --> 00:25:18.673
with the Father?

580
00:25:20.190 --> 00:25:22.760
<v ->Well, I guess I don't see that that follows.</v>

581
00:25:22.760 --> 00:25:25.870
I would add, first of all, that the answer

582
00:25:25.870 --> 00:25:27.870
to the complaint for contempt

583
00:25:27.870 --> 00:25:31.080
and the counterclaim for modification,

584
00:25:31.080 --> 00:25:34.060
those were prepared with the assistance of counsel,

585
00:25:34.060 --> 00:25:35.560
and there was no request,

586
00:25:35.560 --> 00:25:38.740
there was no request for a determination of indigency

587
00:25:38.740 --> 00:25:40.570
or request for counsel made at that time.

588
00:25:40.570 --> 00:25:42.110
That was all prior to the hearing.

589
00:25:42.110 --> 00:25:45.500
And so, you know, this goes to the general,

590
00:25:45.500 --> 00:25:47.440
as we've stated in the brief,

591
00:25:47.440 --> 00:25:51.420
we are sort of uncertain whether this broad question

592
00:25:51.420 --> 00:25:55.280
of right to counsel ought to be addressed in this case.

593
00:25:55.280 --> 00:25:57.380
It's not clear that it was properly presented--

594
00:25:57.380 --> 00:26:00.923
<v ->But if DOR is pushing for incarceration,</v>

595
00:26:03.250 --> 00:26:05.330
I mean, I'm giving those two examples

596
00:26:05.330 --> 00:26:06.500
that your sister just...

597
00:26:06.500 --> 00:26:08.470
DOR is pushing for incarceration,

598
00:26:08.470 --> 00:26:11.580
we have a able lawyer representing DOR,

599
00:26:11.580 --> 00:26:15.417
Or the judge on her own is starting to think,

600
00:26:15.417 --> 00:26:18.200
"I'm gonna put him in jail".

601
00:26:18.200 --> 00:26:23.200
You don't think counsel in those two subsets, is required?

602
00:26:23.440 --> 00:26:26.590
<v ->Not as a global matter in these kinds of cases.</v>

603
00:26:26.590 --> 00:26:29.323
And the reason for that simply goes back to

604
00:26:29.323 --> 00:26:32.590
the three Mathews v. Eldridge factors.

605
00:26:32.590 --> 00:26:36.020
And so let me turn to that, if I may.

606
00:26:36.020 --> 00:26:37.980
So the first factor, of course,

607
00:26:37.980 --> 00:26:39.470
is the private interest at stake,

608
00:26:39.470 --> 00:26:41.460
avoiding improper incarceration.

609
00:26:41.460 --> 00:26:43.110
Absolutely no dispute that that

610
00:26:43.110 --> 00:26:45.600
is an extremely important interest.

611
00:26:45.600 --> 00:26:47.854
But that's not the end of the inquiry.

612
00:26:47.854 --> 00:26:49.540
That is one fad--

613
00:26:49.540 --> 00:26:50.810
<v ->And there're two parts more go ahead.</v>

614
00:26:50.810 --> 00:26:51.643
<v ->Correct.</v>

615
00:26:51.643 --> 00:26:53.243
The second part is,

616
00:26:54.410 --> 00:26:56.730
the risk of erroneous deprivation,

617
00:26:56.730 --> 00:26:59.280
and given the existing safeguards

618
00:26:59.280 --> 00:27:01.379
and the relative Value

619
00:27:01.379 --> 00:27:03.760
of including additional safeguards

620
00:27:03.760 --> 00:27:05.660
against improper incarceration, right?

621
00:27:05.660 --> 00:27:08.100
And then the third, is the governmental interest.

622
00:27:08.100 --> 00:27:11.565
<v ->Okay, so, in the second part of this,</v>

623
00:27:11.565 --> 00:27:14.520
the DOR is determined to put the person in jail

624
00:27:14.520 --> 00:27:18.410
and believes the person has the assets.

625
00:27:18.410 --> 00:27:20.060
You believe that,

626
00:27:20.060 --> 00:27:23.910
because it's a financial inquiry we don't...

627
00:27:23.910 --> 00:27:26.840
To me, then I'm just wondering if that's always the case,

628
00:27:26.840 --> 00:27:28.700
then there's never a lawyer,

629
00:27:28.700 --> 00:27:30.930
'cause, is it your position then

630
00:27:30.930 --> 00:27:34.180
that this can be done without a lawyer because it's just

631
00:27:34.180 --> 00:27:35.743
how much money do I have?

632
00:27:36.690 --> 00:27:39.030
<v ->As the Supreme Court has recognized,</v>

633
00:27:39.030 --> 00:27:40.800
as the Appeals Court has recognized,

634
00:27:40.800 --> 00:27:43.460
in most cases, not in every case,

635
00:27:43.460 --> 00:27:47.200
but in most cases, the ability to pay inquiry

636
00:27:47.200 --> 00:27:49.340
is likely not to be a complex one.

637
00:27:49.340 --> 00:27:53.923
<v ->An example of a case that's the exception.</v>

638
00:27:54.860 --> 00:27:56.180
<v ->Of the complicated case?</v>

639
00:27:56.180 --> 00:27:57.013
<v Judge>Yeah.</v>

640
00:27:57.013 --> 00:28:00.330
<v ->So, I think you know, a possible counter example</v>

641
00:28:00.330 --> 00:28:02.680
is the porter decision from this court.

642
00:28:02.680 --> 00:28:05.790
That was in indigency in terms of whether

643
00:28:05.790 --> 00:28:06.760
it was criminal case.

644
00:28:06.760 --> 00:28:10.190
So it was appointed to counsel on that context.

645
00:28:10.190 --> 00:28:12.960
But the facts there, were not straightforward,

646
00:28:12.960 --> 00:28:14.090
in that there were,

647
00:28:14.090 --> 00:28:16.940
I think three properties owned by the defendant.

648
00:28:16.940 --> 00:28:18.930
And there were tax liens and mortgages

649
00:28:18.930 --> 00:28:21.690
and possible attribution of spousal assets and so forth.

650
00:28:21.690 --> 00:28:24.670
That was a certainly a much more complicated set of facts

651
00:28:24.670 --> 00:28:25.910
than this case.

652
00:28:25.910 --> 00:28:29.360
But even so, I would say in that case,

653
00:28:29.360 --> 00:28:31.440
the determination of indigency,

654
00:28:31.440 --> 00:28:34.520
namely, whether she was entitled to a lawyer at her trial,

655
00:28:34.520 --> 00:28:36.330
proceeded pro se,

656
00:28:36.330 --> 00:28:39.490
and this court, I'm not sure the issue was raised,

657
00:28:39.490 --> 00:28:42.690
but the court did not perceive any difficulty

658
00:28:42.690 --> 00:28:44.390
with having a pro se

659
00:28:44.390 --> 00:28:47.460
and the court also concluded that at the end of the day,

660
00:28:47.460 --> 00:28:51.320
it was appropriate to place the burden of proving indigency

661
00:28:51.320 --> 00:28:54.260
on the defendant in that case, again, for the same reason

662
00:28:54.260 --> 00:28:57.180
that however complex the facts may be,

663
00:28:57.180 --> 00:28:59.570
it was the defendant who was in control of them,

664
00:28:59.570 --> 00:29:01.833
who had the best access to them.

665
00:29:02.717 --> 00:29:07.450
So, if I could just say a couple of words more about

666
00:29:07.450 --> 00:29:09.900
the governmental interest on the sort of a third prong of

667
00:29:09.900 --> 00:29:11.990
the Matthews inquiry in this case.

668
00:29:11.990 --> 00:29:15.620
The interests are not only that,

669
00:29:15.620 --> 00:29:17.560
you know, of course, the Commonwealth has an interest

670
00:29:17.560 --> 00:29:20.330
in avoiding unnecessary administrative

671
00:29:20.330 --> 00:29:23.840
and financial burden of locating

672
00:29:23.840 --> 00:29:26.540
and compensating appointed counsel,

673
00:29:26.540 --> 00:29:29.870
but the entire purpose

674
00:29:29.870 --> 00:29:32.860
of this federal state construct

675
00:29:32.860 --> 00:29:35.800
for child support enforcement is to ensure

676
00:29:35.800 --> 00:29:38.600
that parents who are entitled,

677
00:29:38.600 --> 00:29:41.730
'cause the custodial parent who is entitled by court order

678
00:29:41.730 --> 00:29:43.220
to child support,

679
00:29:43.220 --> 00:29:46.850
gets it in a reasonably timely fashion,

680
00:29:46.850 --> 00:29:49.630
so that she can, she in most cases, not every case,

681
00:29:49.630 --> 00:29:52.470
but so that the custodial parent can look after the child

682
00:29:52.470 --> 00:29:55.580
and can adequately feed and clothe and house the child.

683
00:29:55.580 --> 00:29:57.730
So that is the governmental interest in this case,

684
00:29:57.730 --> 00:29:59.230
it is an important one.

685
00:29:59.230 --> 00:30:01.400
And one of the...

686
00:30:01.400 --> 00:30:02.940
So to return to the discussion

687
00:30:02.940 --> 00:30:06.530
that occurred earlier about sort of the practicalities

688
00:30:06.530 --> 00:30:07.820
of how this would work,

689
00:30:07.820 --> 00:30:12.200
I would agree that if this goes the way it's been proposed,

690
00:30:12.200 --> 00:30:15.690
so that there's some sort of determination in the hearing,

691
00:30:15.690 --> 00:30:17.510
the judge concludes that incarceration

692
00:30:17.510 --> 00:30:18.770
is perhaps appropriate,

693
00:30:18.770 --> 00:30:21.610
at that point, presumably the hearing would have to stop,

694
00:30:21.610 --> 00:30:23.340
there would be a determination as to whether

695
00:30:23.340 --> 00:30:25.330
the defendant is indigent,

696
00:30:25.330 --> 00:30:29.610
and if he is, then counsel would be located,

697
00:30:29.610 --> 00:30:32.680
counsel would be appointed and presumably given time

698
00:30:32.680 --> 00:30:35.440
to confer and to learn the case

699
00:30:35.440 --> 00:30:38.250
so that the representation can be effective.

700
00:30:38.250 --> 00:30:41.140
You are building delay into this process.

701
00:30:41.140 --> 00:30:42.007
<v ->Along with lines,</v>
<v ->Yeah.</v>

702
00:30:42.007 --> 00:30:45.050
<v ->Can you tell me where you think under the public burden,</v>

703
00:30:45.050 --> 00:30:48.270
this is or isn't a legitimate concern

704
00:30:48.270 --> 00:30:52.033
because there's no record behind what I'm going to suggest.

705
00:30:53.210 --> 00:30:54.043
If the,

706
00:30:55.610 --> 00:30:58.760
mother is in court seeking

707
00:30:58.760 --> 00:31:01.900
to have the child support paid,

708
00:31:01.900 --> 00:31:05.340
and the case is continued to another day,

709
00:31:05.340 --> 00:31:06.640
<v Kravitz>Mm-hmm.</v>

710
00:31:06.640 --> 00:31:09.240
<v ->I expect many times what that means is</v>

711
00:31:09.240 --> 00:31:11.360
in addition to coming back another day,

712
00:31:11.360 --> 00:31:13.963
it's another day in the mother missing work.

713
00:31:15.100 --> 00:31:16.930
And losing money.

714
00:31:16.930 --> 00:31:20.900
Is that a fear consideration to Matthew's as to the

715
00:31:20.900 --> 00:31:23.600
as to the public interest issue?

716
00:31:23.600 --> 00:31:24.433
<v Kravitz>Just in terms of having</v>

717
00:31:24.433 --> 00:31:25.470
to come back to another--

718
00:31:25.470 --> 00:31:29.900
<v ->Well, the burden on the custodial parent</v>

719
00:31:29.900 --> 00:31:32.610
of making another appearance in court,

720
00:31:32.610 --> 00:31:34.690
including the financial burden involved,

721
00:31:34.690 --> 00:31:35.523
<v Kravitz>Sure.</v>

722
00:31:35.523 --> 00:31:37.760
<v ->When they're in there trying to get enough money</v>

723
00:31:37.760 --> 00:31:38.910
to pay for that kid.

724
00:31:38.910 --> 00:31:39.970
<v ->Sure, absolutely.</v>

725
00:31:39.970 --> 00:31:43.590
I would say there are a number of costs

726
00:31:43.590 --> 00:31:45.020
to the custodial parent

727
00:31:45.020 --> 00:31:48.493
that the delay and rescheduling would impose,

728
00:31:48.493 --> 00:31:50.340
this would be one of them.

729
00:31:50.340 --> 00:31:53.850
Certainly, and in addition, just the fact of delay means

730
00:31:53.850 --> 00:31:56.070
that you have an additional number of days

731
00:31:56.070 --> 00:31:58.480
or weeks in which presumably the custodial parent

732
00:31:58.480 --> 00:32:01.490
is not receiving the child support payments

733
00:32:01.490 --> 00:32:04.300
that they are entitled to.

734
00:32:04.300 --> 00:32:07.750
So all of these things weigh in,

735
00:32:07.750 --> 00:32:09.530
in the government's interest.

736
00:32:09.530 --> 00:32:12.470
So then what really drives this I think,

737
00:32:12.470 --> 00:32:17.433
is the the risk of erroneous deprivation factor,

738
00:32:18.270 --> 00:32:21.610
and that is what really distinguishes a case like this,

739
00:32:21.610 --> 00:32:23.600
from cases like JKB,

740
00:32:23.600 --> 00:32:27.240
where the court has found that there is right to counsel

741
00:32:27.240 --> 00:32:30.120
in civil, in certain civil proceedings

742
00:32:30.120 --> 00:32:31.700
of family law proceedings.

743
00:32:31.700 --> 00:32:34.880
And the court emphasized in JKB,

744
00:32:34.880 --> 00:32:37.820
that when you're talking about termination

745
00:32:37.820 --> 00:32:40.440
of parental rights, it's essentially, it's a trial.

746
00:32:40.440 --> 00:32:42.480
There's evidence, there are witnesses

747
00:32:42.480 --> 00:32:44.350
that have to be examined and cross examined,

748
00:32:44.350 --> 00:32:45.827
there may be, as the court said,

749
00:32:45.827 --> 00:32:47.670
"sophisticated expert testimony".

750
00:32:47.670 --> 00:32:50.630
So experts have to be located, prepared,

751
00:32:50.630 --> 00:32:52.610
examined, cross examined and so forth.

752
00:32:52.610 --> 00:32:54.540
This is what lawyers are trained to do.

753
00:32:54.540 --> 00:32:59.210
And that is the proceeding that was at stake in JKB

754
00:32:59.210 --> 00:33:02.260
and then it's progeny have held similarly.

755
00:33:02.260 --> 00:33:06.250
This case, again, the inquiry here, in most cases,

756
00:33:06.250 --> 00:33:08.310
is not likely to be that complicated.

757
00:33:08.310 --> 00:33:10.760
It's like to be reasonably straightforward,

758
00:33:10.760 --> 00:33:12.190
there's nothing in this record, for example,

759
00:33:12.190 --> 00:33:14.980
that suggests the inquiry is complex here.

760
00:33:14.980 --> 00:33:16.250
<v ->So if it's all so simple,</v>

761
00:33:16.250 --> 00:33:18.590
why is DOR have to be involved then?

762
00:33:18.590 --> 00:33:20.320
I mean, you know,

763
00:33:20.320 --> 00:33:25.280
if the mother can just walk in and do this,

764
00:33:25.280 --> 00:33:27.613
and the judge can sort this out, you know,

765
00:33:28.620 --> 00:33:33.330
you're bringing the power of DOR to the equation

766
00:33:33.330 --> 00:33:36.510
that seemed to be the issue for the Supreme Court,

767
00:33:36.510 --> 00:33:38.200
um, as well.

768
00:33:38.200 --> 00:33:40.730
So, this is all so simple,

769
00:33:40.730 --> 00:33:43.770
what's DOR need to have a lawyer there for?

770
00:33:43.770 --> 00:33:48.410
<v ->So I mean, DOR under both federal and state law has</v>

771
00:33:48.410 --> 00:33:52.100
the obligation to offer assistance,

772
00:33:52.100 --> 00:33:54.410
which includes enforcement of child support,

773
00:33:54.410 --> 00:33:56.300
so it is directed by--

774
00:33:56.300 --> 00:33:58.250
<v ->No, I get why they're there,</v>
<v ->Yeah.</v>

775
00:33:59.630 --> 00:34:02.423
<v ->They're there because it's not quite so simple right?</v>

776
00:34:05.260 --> 00:34:07.990
<v ->I get, let me answer it this way that--</v>

777
00:34:07.990 --> 00:34:10.030
<v ->Can I ask another question?</v>
<v ->Yeah.</v>

778
00:34:10.030 --> 00:34:12.160
<v ->Do you work in garnish wages, right?</v>

779
00:34:12.160 --> 00:34:12.993
<v Kravitz>Correct.</v>

780
00:34:12.993 --> 00:34:15.740
<v ->So, DOR has,</v>

781
00:34:15.740 --> 00:34:18.940
in the simple case where somebody's got a job,

782
00:34:18.940 --> 00:34:22.400
they can just go directly and garnish the wages right?

783
00:34:22.400 --> 00:34:23.700
<v ->I believe that's right.</v>

784
00:34:23.700 --> 00:34:26.180
There is a wide range of remedies

785
00:34:26.180 --> 00:34:27.840
that the DOR has available.

786
00:34:27.840 --> 00:34:29.275
<v ->So I'm just trying to understand,</v>

787
00:34:29.275 --> 00:34:33.313
is what we're dealing with the more complicated case?

788
00:34:34.490 --> 00:34:37.200
where DOR thinks they have money,

789
00:34:37.200 --> 00:34:40.210
but they can't just simply, you know...

790
00:34:43.240 --> 00:34:45.340
This is a old memory but I thought DOR

791
00:34:45.340 --> 00:34:48.190
can just garnish someone's wages.

792
00:34:48.190 --> 00:34:49.890
<v ->I believe that's correct.</v>

793
00:34:49.890 --> 00:34:52.840
I don't off the top of my head know the exact procedure

794
00:34:52.840 --> 00:34:54.040
that's involved in that.

795
00:34:55.060 --> 00:35:00.060
But, yes, as I said DOR has a wide range of remedies

796
00:35:00.470 --> 00:35:03.510
and you know, no one, DOR included,

797
00:35:03.510 --> 00:35:08.030
is interested in just sort of incarcerating people

798
00:35:08.030 --> 00:35:09.440
because they can't pay.

799
00:35:09.440 --> 00:35:10.530
<v Judge>Right.</v>

800
00:35:10.530 --> 00:35:14.380
<v ->This is used, you know, should be seen as the last resort</v>

801
00:35:14.380 --> 00:35:16.920
when it's other options have failed,

802
00:35:16.920 --> 00:35:20.340
but it believes there is a need to coerce compliance

803
00:35:20.340 --> 00:35:23.600
and if the system is working as it's supposed to,

804
00:35:23.600 --> 00:35:26.770
that should be the limit of how this remedy is used.

805
00:35:26.770 --> 00:35:29.360
<v ->How much notice did the defendant here give</v>

806
00:35:29.360 --> 00:35:33.220
that there was to be a request for him to be held

807
00:35:33.220 --> 00:35:35.120
in contempt and to be held in custody?

808
00:35:38.600 --> 00:35:40.060
<v ->If memory serves,</v>

809
00:35:40.060 --> 00:35:44.040
the complaint was served

810
00:35:44.040 --> 00:35:48.290
on him in October,

811
00:35:48.290 --> 00:35:51.070
I think October 19th, something like that.

812
00:35:51.070 --> 00:35:53.040
I can pull up the exact--

813
00:35:53.040 --> 00:35:54.440
<v ->The complaint for civil contempt?</v>

814
00:35:54.440 --> 00:35:55.560
<v ->The complaint for contempt.</v>

815
00:35:55.560 --> 00:35:58.510
<v ->Okay, and was it made known that he would--</v>

816
00:35:58.510 --> 00:36:00.063
<v ->Excuse me, yeah.</v>

817
00:36:00.063 --> 00:36:03.310
The complaint was served on September 17th.

818
00:36:03.310 --> 00:36:07.550
Was served on him September 17th according to the document,

819
00:36:07.550 --> 00:36:09.810
this is page 15 in the appendix.

820
00:36:09.810 --> 00:36:11.160
<v ->And the hearing was?</v>

821
00:36:11.160 --> 00:36:12.900
<v ->And the hearing was November 1st,</v>

822
00:36:12.900 --> 00:36:14.683
so roughly six weeks.

823
00:36:16.500 --> 00:36:20.713
And again, there should have been included with the summons,

824
00:36:22.480 --> 00:36:23.740
the stuffer that was mentioned.

825
00:36:23.740 --> 00:36:26.010
<v ->Okay, so you're here on behalf of DOR.</v>

826
00:36:26.010 --> 00:36:28.260
Can you tell me how often there is truly

827
00:36:28.260 --> 00:36:30.530
an evidentiary hearing or a true opportunity

828
00:36:30.530 --> 00:36:35.193
to examine ability to pay at a DOR hearing.

829
00:36:36.860 --> 00:36:39.350
<v ->I mean, as the public records request</v>

830
00:36:39.350 --> 00:36:42.010
that was submitted as part of

831
00:36:42.010 --> 00:36:44.370
the supplemental appendix indicates there are a lot

832
00:36:44.370 --> 00:36:45.850
of hearings in these cases.

833
00:36:45.850 --> 00:36:48.460
In over about two and a half years,

834
00:36:48.460 --> 00:36:51.003
something north of 12, 000 hearings occurred.

835
00:36:51.977 --> 00:36:52.810
I cannot give you--

836
00:36:52.810 --> 00:36:53.643
<v ->And my question is how often I mean,</v>

837
00:36:53.643 --> 00:36:54.987
I know that there're,

838
00:36:54.987 --> 00:36:59.300
the record reflects a number of cases involving

839
00:36:59.300 --> 00:37:01.880
a number of Probate and Family court judges

840
00:37:01.880 --> 00:37:05.900
who have ordered contempt with custody without a finding

841
00:37:05.900 --> 00:37:06.973
of ability to pay.

842
00:37:08.250 --> 00:37:10.000
<v ->You're referring to the cases in the footnote--</v>

843
00:37:10.000 --> 00:37:10.833
<v ->Cases in the footnote.</v>

844
00:37:10.833 --> 00:37:11.690
<v ->In my colleagues brief.</v>

845
00:37:11.690 --> 00:37:13.980
<v ->Right, this question I'm asking you is,</v>

846
00:37:13.980 --> 00:37:18.300
based on your client's involvement in DOR hearings,

847
00:37:18.300 --> 00:37:22.280
how often are their true evidentiary examinations

848
00:37:22.280 --> 00:37:23.453
of ability to pay?

849
00:37:24.404 --> 00:37:25.510
<v ->I cannot give you a percentage.</v>

850
00:37:25.510 --> 00:37:26.860
<v ->Isn't that, I mean,</v>

851
00:37:26.860 --> 00:37:28.800
just can you give me any information

852
00:37:28.800 --> 00:37:30.770
as to whether this is...

853
00:37:30.770 --> 00:37:33.370
You have characterized this as an outlier.

854
00:37:33.370 --> 00:37:36.270
Do you have any basis to characterize this

855
00:37:36.270 --> 00:37:38.400
as an outlier as opposed to something within

856
00:37:38.400 --> 00:37:39.513
the realm of the norm?

857
00:37:42.470 --> 00:37:45.151
<v ->I have no reason to think that,</v>

858
00:37:45.151 --> 00:37:50.151
that in general, DOR is not following its procedures.

859
00:37:50.280 --> 00:37:52.410
But I can ask for further information from the agency--

860
00:37:52.410 --> 00:37:54.600
<v ->I'm referring to whether the Probate and Family Court</v>

861
00:37:54.600 --> 00:37:56.110
is following its procedures as well.

862
00:37:56.110 --> 00:37:58.280
I mean, here basically,

863
00:37:58.280 --> 00:38:00.030
this is a perfect case for them to bring

864
00:38:00.030 --> 00:38:00.863
it as a test case.

865
00:38:00.863 --> 00:38:04.640
So DOR fell down,

866
00:38:04.640 --> 00:38:06.770
Probate and Family Court fell down.

867
00:38:06.770 --> 00:38:08.760
This is a complete failure to abide

868
00:38:08.760 --> 00:38:11.940
with obligations under both the Massachusetts

869
00:38:11.940 --> 00:38:14.240
and United States Constitution to examine

870
00:38:14.240 --> 00:38:15.293
the ability to pay.

871
00:38:16.570 --> 00:38:18.360
And they're basically saying that the remedy

872
00:38:18.360 --> 00:38:20.430
that we should impose for that

873
00:38:20.430 --> 00:38:24.050
is to appoint an attorney to ensure

874
00:38:24.050 --> 00:38:26.620
that those obligations are followed.

875
00:38:26.620 --> 00:38:30.160
Can you give me any, any information

876
00:38:30.160 --> 00:38:32.680
to indicate whether or not this is an outlier

877
00:38:32.680 --> 00:38:34.430
or whether this is within the norm?

878
00:38:35.640 --> 00:38:38.270
<v ->I certainly don't think it's within the norm Your Honor,</v>

879
00:38:38.270 --> 00:38:41.100
but I cannot give you, I cannot give you information off

880
00:38:41.100 --> 00:38:41.933
the top of my head.

881
00:38:41.933 --> 00:38:45.050
I can submit a letter after argument

882
00:38:45.050 --> 00:38:46.950
if that would be helpful to the court.

883
00:38:48.890 --> 00:38:51.327
<v ->Isn't that sort of what this case is about?</v>

884
00:38:52.570 --> 00:38:54.540
<v ->I think what the case, (laughs)</v>

885
00:38:54.540 --> 00:38:56.350
I think what this case is about is what are

886
00:38:56.350 --> 00:38:57.960
the requirements of due process

887
00:38:57.960 --> 00:38:58.793
in these kinds of hearings?

888
00:38:58.793 --> 00:39:01.610
<v ->But the requirements to due process are in part,</v>

889
00:39:01.610 --> 00:39:06.500
based on the extent to which attorney is needed to ensure

890
00:39:06.500 --> 00:39:09.380
that a fair hearing is being conducted,

891
00:39:09.380 --> 00:39:12.680
and the extent to which a fair hearing

892
00:39:12.680 --> 00:39:14.160
is routinely being conducted

893
00:39:14.160 --> 00:39:16.510
and all the protections that you identify

894
00:39:16.510 --> 00:39:21.230
or require constitutionally are being in fact, furnished

895
00:39:21.230 --> 00:39:23.920
would matter in terms of our evaluation as to whether

896
00:39:23.920 --> 00:39:25.860
or not we have a systemic problem or not.

897
00:39:25.860 --> 00:39:27.470
<v ->Mm-hmm.</v>

898
00:39:27.470 --> 00:39:30.600
In terms of information that I could helpfully supply

899
00:39:30.600 --> 00:39:31.433
to the Court,

900
00:39:31.433 --> 00:39:35.090
again, I will consult with my colleagues at the agency

901
00:39:35.090 --> 00:39:35.923
and I can get back to you.

902
00:39:35.923 --> 00:39:36.756
<v ->And I asked...</v>

903
00:39:36.756 --> 00:39:37.890
Let me throw you a little Lifeline here.

904
00:39:37.890 --> 00:39:38.913
I'm not sure,

905
00:39:39.860 --> 00:39:43.630
the financial statement is often required

906
00:39:43.630 --> 00:39:44.540
in these cases, right?

907
00:39:44.540 --> 00:39:46.370
The Probate and Family Court

908
00:39:46.370 --> 00:39:47.850
has a financial statement.

909
00:39:47.850 --> 00:39:48.683
<v Kravitz>That's correct.</v>

910
00:39:48.683 --> 00:39:53.503
<v ->So, is that mandatorily attached to</v>

911
00:39:53.503 --> 00:39:55.750
the civil contempt summons

912
00:39:55.750 --> 00:39:56.910
or any of the other documents?

913
00:39:56.910 --> 00:39:59.793
Do we know sort of practices in this area?

914
00:40:00.770 --> 00:40:03.167
<v ->It is supposed to be included with the summons,</v>

915
00:40:03.167 --> 00:40:04.470
the financial statement,

916
00:40:04.470 --> 00:40:06.400
the information about what is going

917
00:40:06.400 --> 00:40:07.930
to be at issue with the hearing,

918
00:40:07.930 --> 00:40:10.630
is all supposed to be included with the summons.

919
00:40:10.630 --> 00:40:12.830
You know, again, we don't have in the records--

920
00:40:12.830 --> 00:40:16.030
<v ->So there's some, you may have some ability</v>

921
00:40:16.030 --> 00:40:20.710
to determine just by how often that occurs whether

922
00:40:20.710 --> 00:40:22.260
this is an outlier or not.

923
00:40:22.260 --> 00:40:26.210
I mean, 'cause it looks like financial information

924
00:40:26.210 --> 00:40:29.160
as a matter of course is required--

925
00:40:29.160 --> 00:40:31.680
<v ->It is, it is absolutely correct, yeah.</v>

926
00:40:31.680 --> 00:40:33.390
I mean, that statement is supposed to be present

927
00:40:33.390 --> 00:40:34.223
in every case.

928
00:40:34.223 --> 00:40:37.220
<v ->It may not be quite the danger the Chief is worried about</v>

929
00:40:37.220 --> 00:40:38.850
but--

930
00:40:38.850 --> 00:40:40.847
<v ->One certainly hopes not, you know.</v>

931
00:40:40.847 --> 00:40:44.110
<v ->Can I just satisfy my curiosity, what is a stuffer?</v>

932
00:40:44.110 --> 00:40:45.883
<v ->It's just a piece of paper,</v>

933
00:40:47.230 --> 00:40:50.790
it's exactly the piece of paper that is at,

934
00:40:50.790 --> 00:40:54.480
I think page seven, page seven of the--

935
00:40:54.480 --> 00:40:55.880
<v Judge>Another word for insert.</v>

936
00:40:55.880 --> 00:40:57.650
<v ->It's an insert, yes, exactly.</v>

937
00:40:57.650 --> 00:41:01.086
I don't know where the, I don't know why the (mumbles)

938
00:41:01.086 --> 00:41:02.950
but it's a piece of paper that is included

939
00:41:02.950 --> 00:41:06.970
in the envelope along with the complaint for contempt.

940
00:41:06.970 --> 00:41:08.700
<v ->Okay, but there's no reason to think it was included</v>

941
00:41:08.700 --> 00:41:10.250
in this case, is that what you're saying?

942
00:41:10.250 --> 00:41:12.840
<v ->We cannot tell from the record whether it was.</v>

943
00:41:12.840 --> 00:41:16.110
It is standard practice, it is DOR standard practice

944
00:41:16.110 --> 00:41:18.880
that that piece of paper along with the financial statement

945
00:41:18.880 --> 00:41:22.770
is included in with the complaint,

946
00:41:22.770 --> 00:41:25.053
if DOR chooses to serve the complaint.

947
00:41:25.970 --> 00:41:28.870
But again, it is not apparent either way

948
00:41:28.870 --> 00:41:31.430
from the record whether it was included in this case.

949
00:41:31.430 --> 00:41:34.200
<v ->Now, the brief makes clear that DOR is not acting</v>

950
00:41:34.200 --> 00:41:35.420
as the attorney,

951
00:41:35.420 --> 00:41:36.253
<v ->Correct.</v>

952
00:41:36.253 --> 00:41:40.560
<v ->In this case, but it is a party seeking civil contempt.</v>

953
00:41:40.560 --> 00:41:41.920
So, what...

954
00:41:42.840 --> 00:41:45.420
How is it's role defined?

955
00:41:45.420 --> 00:41:47.380
<v ->So, you're absolutely correct</v>

956
00:41:47.380 --> 00:41:50.610
that DOR does not represent either parent in these cases

957
00:41:50.610 --> 00:41:54.150
and it does not have any sort of attorney-client obligation

958
00:41:54.150 --> 00:41:55.400
to either parent.

959
00:41:55.400 --> 00:41:58.480
And so again, the way it is supposed to work,

960
00:41:58.480 --> 00:42:02.500
is that DOR is sort of a broker of information,

961
00:42:02.500 --> 00:42:04.030
if it has done the investigation

962
00:42:04.030 --> 00:42:06.180
that's set out in its procedures,

963
00:42:06.180 --> 00:42:07.930
it will presumably have information

964
00:42:07.930 --> 00:42:10.830
about various potential sources of ability to pay.

965
00:42:10.830 --> 00:42:14.100
And its obligation is to present that information

966
00:42:14.100 --> 00:42:14.933
to the court,

967
00:42:14.933 --> 00:42:17.980
in order to help the court make a determination one way

968
00:42:17.980 --> 00:42:20.880
or the other about whether there is ability to pay

969
00:42:20.880 --> 00:42:21.880
in this case.

970
00:42:21.880 --> 00:42:26.830
<v ->Isn't that a little understating DOR's role in there?</v>

971
00:42:26.830 --> 00:42:30.800
That the woman in this case doesn't even show up, right?

972
00:42:30.800 --> 00:42:32.600
<v ->Oh, she is present at the first hearing.</v>

973
00:42:32.600 --> 00:42:33.433
<v ->Not the second.</v>

974
00:42:33.433 --> 00:42:38.433
DOR is the sole person pursuing her interests, right?

975
00:42:38.980 --> 00:42:41.760
It's not really acting as a neutral here (coughs).

976
00:42:41.760 --> 00:42:44.870
<v ->So, let me sort of clarify the sequence of the hearings</v>

977
00:42:44.870 --> 00:42:45.703
if I could.

978
00:42:45.703 --> 00:42:48.220
So at the first hearing, the mother is present,

979
00:42:48.220 --> 00:42:50.990
but absolutely DOR is present at that hearing

980
00:42:50.990 --> 00:42:54.720
and does advocate both for contempt and for incarceration

981
00:42:54.720 --> 00:42:57.280
and as we have agreed,

982
00:42:57.280 --> 00:43:00.063
that was error under the circumstances.

983
00:43:01.140 --> 00:43:03.940
At the subsequent hearings, I believe,

984
00:43:03.940 --> 00:43:06.580
well the second hearing, there's confusion about whether

985
00:43:06.580 --> 00:43:08.310
the counterclaim was filed and so forth.

986
00:43:08.310 --> 00:43:11.780
But the third hearing, the mother is not present.

987
00:43:11.780 --> 00:43:16.050
DOR is present, but there has been,

988
00:43:16.050 --> 00:43:18.548
I do think it's important to address this.

989
00:43:18.548 --> 00:43:22.710
There's a, the characterization of DOR is advocating against

990
00:43:22.710 --> 00:43:25.610
the modification in that hearing.

991
00:43:25.610 --> 00:43:26.730
It's a short hearing,

992
00:43:26.730 --> 00:43:28.730
I've read the transcript multiple times,

993
00:43:28.730 --> 00:43:30.130
I honestly don't see it.

994
00:43:30.130 --> 00:43:32.880
It seems to me What DOR does in that case,

995
00:43:32.880 --> 00:43:34.640
is at that hearing,

996
00:43:34.640 --> 00:43:39.640
is that they agree that Mr. Grullon's income has gone down

997
00:43:40.020 --> 00:43:42.580
from the previous month to the present month,

998
00:43:42.580 --> 00:43:45.370
and that that might affect the bottom line.

999
00:43:45.370 --> 00:43:46.900
And then at the end of the hearing,

1000
00:43:46.900 --> 00:43:50.440
the judge enters a very substantial modification,

1001
00:43:50.440 --> 00:43:52.861
and there's no objection from DOR.

1002
00:43:52.861 --> 00:43:54.510
So it does not...

1003
00:43:54.510 --> 00:43:56.800
I just don't think it's an accurate characterization

1004
00:43:56.800 --> 00:43:58.790
of DOR's role at that hearing

1005
00:43:58.790 --> 00:44:01.240
that it was advocating against the modification,

1006
00:44:01.240 --> 00:44:02.650
if anything, it was agreeing that

1007
00:44:02.650 --> 00:44:04.460
the circumstances had changed.

1008
00:44:04.460 --> 00:44:05.530
<v ->Chief can I ask one last question?</v>

1009
00:44:05.530 --> 00:44:06.363
<v Chief>Sure.</v>

1010
00:44:06.363 --> 00:44:09.350
<v ->So, say we disagree with you,</v>

1011
00:44:09.350 --> 00:44:13.320
and believe that a lawyer is required

1012
00:44:13.320 --> 00:44:15.213
if a judge is going to,

1013
00:44:16.810 --> 00:44:19.600
considering putting the, you know,

1014
00:44:19.600 --> 00:44:22.191
the non-responding spouse into jail.

1015
00:44:22.191 --> 00:44:23.774
<v Kravitz>Mm-hmm.</v>

1016
00:44:25.170 --> 00:44:26.410
<v ->The Commonwealth's interest,</v>

1017
00:44:26.410 --> 00:44:28.890
the Commonwealth's gonna have to pay for this lawyer, right?

1018
00:44:28.890 --> 00:44:29.723
<v Kravitz>Correct.</v>

1019
00:44:29.723 --> 00:44:33.540
<v ->Have you done any thinking on sort of how much</v>

1020
00:44:33.540 --> 00:44:35.370
that would cost and how,

1021
00:44:35.370 --> 00:44:37.700
'cause I take it in the second calculus,

1022
00:44:37.700 --> 00:44:40.260
or the third calculus, the Commonwealth interest,

1023
00:44:40.260 --> 00:44:42.940
we would have to consider the cost of the Commonwealth

1024
00:44:42.940 --> 00:44:45.550
of imposing such a burden, right?

1025
00:44:45.550 --> 00:44:47.650
<v ->That is certainly part of the government's interest</v>

1026
00:44:47.650 --> 00:44:48.483
in this case.

1027
00:44:48.483 --> 00:44:51.200
<v Judge>And what, you have any sense of what</v>

1028
00:44:51.200 --> 00:44:52.680
that could amount to?

1029
00:44:52.680 --> 00:44:55.650
<v ->I mean, I don't because it depends on</v>

1030
00:44:55.650 --> 00:44:57.190
the parameters of the right.

1031
00:44:57.190 --> 00:44:59.700
You know, I think there's some disagreement

1032
00:44:59.700 --> 00:45:02.600
between my colleagues and between some of the amici

1033
00:45:02.600 --> 00:45:04.873
as to what the triggering event ought to be.

1034
00:45:06.490 --> 00:45:08.330
My colleague argues that,

1035
00:45:08.330 --> 00:45:10.530
even if it's pro se against pro se,

1036
00:45:10.530 --> 00:45:13.790
as soon as the judge is considering incarceration,

1037
00:45:13.790 --> 00:45:16.170
then the right to counsel ought to attach.

1038
00:45:16.170 --> 00:45:19.670
<v ->We know the number of people who've been incarcerated.</v>

1039
00:45:19.670 --> 00:45:20.980
I've read some of the brief,

1040
00:45:20.980 --> 00:45:23.740
but I've not read all the amicus briefs.

1041
00:45:23.740 --> 00:45:25.930
Do we know the number who've been incarcerated?

1042
00:45:25.930 --> 00:45:29.180
<v ->I do not think we have a global number for that.</v>

1043
00:45:29.180 --> 00:45:33.310
What we have, there are some public records requests,

1044
00:45:33.310 --> 00:45:35.750
responses to public records in the supplemental appendix

1045
00:45:35.750 --> 00:45:37.710
from a couple of different counties,

1046
00:45:37.710 --> 00:45:40.670
and so we have information, I believe,

1047
00:45:40.670 --> 00:45:43.060
from Essex and Middlesex,

1048
00:45:43.060 --> 00:45:46.730
as to the number of persons who are incarcerated

1049
00:45:46.730 --> 00:45:50.523
on orders of this kind over a period of about seven years.

1050
00:45:51.850 --> 00:45:54.290
And the numbers are relatively small,

1051
00:45:54.290 --> 00:45:57.591
but, not you know, not insignificant.

1052
00:45:57.591 --> 00:45:58.996
And so, but--

1053
00:45:58.996 --> 00:46:02.900
<v ->In comparison, the number of DOR lawyers who show up</v>

1054
00:46:02.900 --> 00:46:04.913
to do these cases are how many?

1055
00:46:06.240 --> 00:46:08.040
<v ->The actual number of people on staff?</v>

1056
00:46:08.040 --> 00:46:09.573
<v ->Well I'm trying to compare, you know,</v>

1057
00:46:09.573 --> 00:46:13.040
when we look at CPCS in the Commonwealth and criminal cases,

1058
00:46:13.040 --> 00:46:14.670
we can look at both sides.

1059
00:46:14.670 --> 00:46:18.610
Do we know how many lawyers at DOR come to do these cases?

1060
00:46:18.610 --> 00:46:20.570
<v ->I can certainly find that information out.</v>

1061
00:46:20.570 --> 00:46:22.520
I don't know it off the top of my head.

1062
00:46:23.430 --> 00:46:24.840
But again, the number of hearings

1063
00:46:24.840 --> 00:46:27.010
at which this will be required will depend, you know,

1064
00:46:27.010 --> 00:46:29.690
substantially on whether the right,

1065
00:46:29.690 --> 00:46:31.800
should this Court find one is limited to cases

1066
00:46:31.800 --> 00:46:33.360
in which DOR appears,

1067
00:46:33.360 --> 00:46:36.430
or if it's simply all cases in which incarceration

1068
00:46:36.430 --> 00:46:37.890
and also what is the trigger?

1069
00:46:37.890 --> 00:46:39.880
Whether incarceration is guaranteed

1070
00:46:39.880 --> 00:46:42.030
or just on the table or wherever it is.

1071
00:46:42.030 --> 00:46:45.110
So those will all obviously affect the number of instances.

1072
00:46:45.110 --> 00:46:46.280
<v ->Oh, can't be guaranteed,</v>

1073
00:46:46.280 --> 00:46:48.420
otherwise the judge will have had to make a decision before

1074
00:46:48.420 --> 00:46:49.610
the judge appoints counsel.

1075
00:46:49.610 --> 00:46:53.430
So, it would have to be reasonably contemplated.

1076
00:46:53.430 --> 00:46:54.330
<v Kravitz>Right.</v>

1077
00:46:55.640 --> 00:46:57.260
<v ->And what meaning do we take from the fact</v>

1078
00:46:57.260 --> 00:46:59.840
that Middlesex which is the most populous county

1079
00:46:59.840 --> 00:47:01.560
has many, many fewer than Essex,

1080
00:47:01.560 --> 00:47:03.960
which is a far less populous county?

1081
00:47:03.960 --> 00:47:07.090
And that about 75, between two thirds

1082
00:47:07.090 --> 00:47:12.090
and 75% of those individuals are not paying the amount due

1083
00:47:13.050 --> 00:47:16.393
but in fact completing their civil contempt term.

1084
00:47:18.110 --> 00:47:21.310
<v ->You know, honestly, I don't know what to take from that</v>

1085
00:47:21.310 --> 00:47:23.410
other than simply the fact of the numbers.

1086
00:47:24.390 --> 00:47:27.200
We obviously don't know anything about what happened

1087
00:47:27.200 --> 00:47:28.033
in those hearings,

1088
00:47:28.033 --> 00:47:30.200
we don't know anything about the relative means

1089
00:47:30.200 --> 00:47:34.713
of the individuals who chose to pay versus who did not pay.

1090
00:47:37.170 --> 00:47:40.070
There is obviously the numbers are...

1091
00:47:42.620 --> 00:47:44.360
I don't know what to make of the difference between

1092
00:47:44.360 --> 00:47:47.900
the numbers from Middlesex and from Essex to be honest.

1093
00:47:47.900 --> 00:47:48.836
<v Judge>Okay, thank you.</v>

1094
00:47:48.836 --> 00:47:49.836
<v ->Thank you.</v>